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5tZSSs 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 


^."v^-OuL..^ 


x-  aK  i    .  /  ■  :    , 


TREATISE 


ON  THE 


LAW   OF    SLANDEE 


AND 


L  I  S  E  L, 

AND    INCIDENTALLY    OF 

MALICIOUS  PROSECUTIONS. 


Nescit  vox  missa  reverti. 


By  THOMAS  STARKIE,  Esq. 

OF  Lincoln's  inn,  barkister  at  law. 


<  »«» 'ii 


FROM  THE  SECOND  EN&LISH  EDITION  OF  1830, 

WITH   NOTES   AND   REFERENCES   TO   AMERICAN    CASES   AND   TO    ENaLISH    DE- 
CISIONS   SINCE   1830. 


BY    JOHN    L.    WENDELL, 

COUNSELLOR  AT    LAW. 


VOL.  I. 


WEST  BROOKFIELD,  MASS: 

STEAM  POWER  PRESS  OF  0.  S.  COOKE  &  CO. 

1852. 


Entered,  according  to  act  of  Congress,  ia  the  year  one  thousand  eight  hundred  and 

forty-three, 

BY  JOHN  L.  WENDELL, 
In  the  Clerk's  Office  of  the  District  Court  of  the  Northern  District  of  New- York. 


T 
5t2SCs 


TABLE  OF  CASES 


CITED  BY  THE  AUTHOR. 


A. 

Abergavenny  (Ld)  v.  Cartwright  i  186 

's  (Ld)  Case,  i  185 

Adams  v.   Mendew  i  391 

Aitken  v.  Read  and  Fleming  P.  D.    33 
Alverton   v.    Tregono,  i  450 

Anson  v.  Staart,  i.  112,  159,168,  234 
Argyle  v.    Hunt,  ii    124,  126 

Archbishop  of  Tuamv.  Robeson  i  162 
Armstrong  v.  Jordon,  ii     11 

Arne  v.  Johnson  i  140 

Ashby  V.  "White  i  245 

Ashley  v.  Harrison  ii   64,    65 

(Sir  R.)  i  250 

's  (Sir  Anthony)  case  ii    73 

Astley  V.  Young  i  246,  472 

Ait'y-General  v.  Annett,  ii  140 

V.Eaton  ii  142,   150 

V.  Hive  ii  139 

V.  Le  Merchant,  ii  28,  49 

V.  White  ii  201 

V.  Wilkes,  ii  141,  158,  174,  267 

Austen  (Sir  J.)  v.  Culpepper  (Col.) 

i  156,  173 
Avarillo  v.  Rogers  i  369 


Baldwin  v.   Elphinstone 


Flower 
.  Banister 


Banister 
Barbara's  Case 
Barnabas  v.  Traunter 
Barnes  v.  Bruddell 

V.  Prudling 

Barren  v.  Gibson 
Barrons  v.  Ball 
Barrow  v.  Llewellin 
Baxter's  Case 
Beauchamp  (Ld.)  v.  Croft 
Beaumond  v.  Hastings 
Beavor  v.  Hides 
Bell  V.  Byrne 

V.  Stone 

V.  Wardell 

Bellingham  v.  Minors 
Bendish  v.  Lindsey 
Berryman  v.  Wise 
Bill  V.  Neal 
Bishops'  (seven)  Case 


i  210, 

358.  ii  16 
i  199 
i  145 
i  422,  424 
i  25 
i  293 
ii  62 
i  203 
i  395 
ii  231 
i  419 


Blackburn  v.  Blackburn, 
Bliss  V.  Stafford 
Blisset  V.  Johnson 
Blizard  v.  Kelly 
Bolton  (Sir  Wm)  v.  Dean 
Bonham's  (Dr.)  Case 


i  404 

i  74  ii  111 

i  373,  378,  482 

i.  161,  168 

i  281 

i  475 

i  35, 435 

ii2,  10,310 

i  121,  122 

ii  20,  37,  38, 

39,  268,  338 

ii  323 


Baal  V.  Baggerley 

i     50 

Baornall  v.  Underwood 

ii  310 

Boston  V.  Tatham 

Baker  v.  Peirce 

152,  91 

Boulton  V.  Clapham 

's  Case 

ii  368 

Bourke  v.  Warren 

i  145 
1370 
i449 
i  173 
ii  97, 
270 
19,  20 
1250 
ii3>?5 


75S0C9 


TABLE  OF  CASES. 


Bradley  v.  Methwyn 
Bridge'3  Case 
Brigg's  Case 
Briibridge's  Case 
Bromage  v.  Prosser, 


i  157 

i    48 

i  108 

1464 

i  373,  220 

ii  85,  105 

Brookbard  v,  Woodley,  ii   20 

Brooke  v.  Montague  (Sir  Henry)  i 

216,  283,  286 

Brookes  v.  Warwick  i  283 

ii74,    78 

Brown  v.  Croorae  i  214,  327 

ii    86 

V  Murray  ii    67 

V.  Si.  John  i    84 

Browning  v.  Newman  i  440 

Brownlow's  (Dr.)  Case,  i  401 

Buchanan's  Case  ii    24 

Buckingham  v.  Murray,  i  380 

Buckingham's  (Duke  of)    Case,  i 

182,  184,  186 
Buckley  v.  Wood  i  248  252,  254, 

256,  288 

's  Case  i  253 

Burden  (Bart.)  v.  Abbott   ii   205,  293 
Burgess  v.  Boucher  i    53 

Burgis's  Case  i  374 

Burley  v.  Bethune  ii    77 

Burnet  V.  Codman  i  387 

V.  Wells,  i  413  ii  109 

Burton's  Case  ii  368 

Busby  V.  Watson  i  446 

Bushel's  Case  ii  335 

Bustwick's  Case  ii  368 

Butt  V.  Conant  ii  294 

Button  V.  Hay  ward  i  16,  54,  393 

Byrne  v,  Moore,  i  448  ii   76 


Candell  v.  Loudon 
Cardinal's  Case 
Carpenter  v.  Tarrant 
Carr  (Sir  John)  v.  Hood, 

's  Case 

Carntl  v.  Bird 
Carslake  v.  Mapledoram, 
Cartwright  v.  Wiight 
Gary  v.  Piit 
Ceely  v.  Hnskins 
Chalmer's  Case, 
Chambers  v.  Jennings 
V.  Robinson 


i  279 

i    33 

i  19,  20 

i  305 

ii     28 

i  293 

114,  115 

i  379 

ii  17,  19,  27 

i    49 

P.  D.     45 

ii  127 

ii  65,  78 


Chapman  v.  Lamphire  i  140 

Charnel's  Case  i    77 

Child  V.  Affleck,  i  301 

Christie  v.  Cowell  ii    85 

V.  Powell  i    86 

Churchill  (Lord)  v.  Hunt  i  410 

Clark  V.  Price  ii  119 

Clarke  v.  Periatn  ii    63 

Clayton  v.  Nelson  ii    67 

Cleaver  v.  Sarrande  i  323,  32 

Clement  V.  Chivis  i  163 

Clendon's  Case  ii  138 

(yjerk  V.  James  i  346 

Clissold  V.  Clissold  i  343 

Clutterbuck  v.  Chaffers,  ii  14,  17 

Cobb  V.  Carr  ii     80 

Cockaine's  (Lady)  Case,  i  33, 105,  106 
Cohen  v.  Morgan  i  449  ii    73 

Coleman  v.  Goodwin  i  449 

Collis  V.  Malin  i  404 

Collisv.  Loder  ii  103 

Constantine  v.  Barnes  i  446 

Cook  V.  Bachelor  i  347 

V.  Field  i  236,  444,  ii  101 

Cooke  V.  Cox     ,  i  367,  368 
V.  Hughes  i  381 

ii    85 

V.  Smith  i  380 

Cooper  V.  Hawkswell  i    76 

V.  Smith  i  394 

Cornwall  v.  Richardson  ii    60 

Cox  V.  Humphreys  i     38 

Coxeter  V.  Parsons  ii  119 

Craft  V.  Broile  i  346,  427 

Craig  V.  Hunter  P.  D.     78 

Crawford  v.  Middleton  i  331 

ii  103 
Crofts  (Sir  Harberl)  v.  Brown  i 

14,  102,  104,  106 
Cromwell  (Lord)  v.  Denny  i  463 

's    (Lord)  Case    i    184, 

235,  461 
Croop  V.  Tilney  i  157,  167,  173 

Crosby's  Case  ii     24 

Cuddington  v.  Wilkins  i  19,  237,  492 
Cuiry  V.   Waller   i  259  263,  265, 

269,  408,  471,  472,  ii  83,     86 
Cutler  V.  Dixon  i  249 


D. 


Dacosta  \.  Pym 
Davis  V.  Gardiner 


ii     19 
i  195 


TABLE  OF  CASES. 


Davis  V.  Lewis  i  139,  231 

. V.  Noak  i  66,  448 

's  Case,   i  195,  198,  199, 

200,  202 
Dawes  v.  Bolton 


Dean's  Case 

De  Crespigny  v.  Wellesley 

Delacroix  v.  Thevenot 

Delamore  v.  Heskins 

De  la  Motte's  Case 

Delany  v.  Jones  i  69, 

Delanny  v.  Mitchell 

Dibdin  v.  Bostock 

■ V.  Swan  and  Bostock 


1 
ii 

i 
ii  14, 

i 
ii 


38 
270 
329 

17 
386 

28 


321,  327 
ii  67 
i  314 
i  142 

Dobson  V.  Thorstone  i  141 

Dobb  V.  Robinson  i  403 

Doncaster  v.  Hewson  i  373 

Dorcliester's  (Marquis  of)   Case  i 

182,  184,  188,  342,  344 


Dorrell  v.  Grove 
Drake  v.  Corderoy 

's  (Dr.)  Case 

Driver  v.  Driver 

Du  Bost  V.  Beresford 

Duncan  v.  Thwaites 

Dunman  v.  Bigg 
Dunne  v.  Anderson 


E. 


1     73 

i  415 

i  362 

ii  124 

i  172  ii  321 

i  226, 267, 

269,  274,  486 

i  324 

i  314 


Earner  v.  Merle  ii    91 

East  V.  Chapman  ii     98 

Eaton  V.  Allen  i.  22,  23,  34,  35 

Eddovves  v   Hopkins  ii  111 

Edmonson  v.  Stevenson       i.  223, 

294,  299 
Edwards  v.  Lell  i.  498   ii  102 

(Dr.)  V.  Wooton  (Dr.)     i 

153,  ii  230 

'sCase  i  12,  210 

Elbrow  V.  Allen  i  193 

Ellershaw  v.  Robinson  and  Ux  ii     90 
E;.gland  v.  Bourke  i  235 

ii  102 
Entick  V.  Carrington  ii  29,  299 

Evans  v.  Brown  ii  120 


374 

137 

365 

345 

48, 

395 

347 

11 

28 

343 

283 

481 

Ferrers  (Ld)  v.  Shirley  ii  17,  18,     19 
Fife  V.  Fife  P.  D.  44,    45 

Figgins  V.  Cogswell  i  418 

Finnerty  v.  Tipper  ii  54,  100 

Fleetwood  (Sir  Miles)  v.  Curl  ii 

HI,  419 

V.  Curley  ii    53 

Fletcher  v.  Braddyll  ii     39 

V.  Webb  ii    74 

Flint  V.  Pike  i  261,  262,  272,  485,  486 
Flower  v.  Pedley 

's  Case 

Ford  v.  Bennett 

v.  Brooke 

Forster  v.  Browniog 
Foster  v.  Lawson 
Francias's  Case 
Freeman  v.  Norris 
Fry  V.  Hill 
Fysh  V.  Thorowgood 


G. 


Gadd  V.  Bennett  i  451 

Garrels  v.  Alexander  ii     17 

Gainford  v.  Tuke  i  19,     20 
Gerald's  (Sir  C  )  bailiff's  Case  i  195 

Gerrard  (Sir  W.)   v.  Dickenson  i 

192,  256,  288,  289,  319,  330,  436 

Girlington  v.  Pitfield  ii    70 

Gobbett's  Case  ii  120 

Goddard  v.  Smith  ii     86 

Golding  V.  Crowle  i  279  ii    79 

Goldstein  v.  Foss  ii  305,  306 

Goodtitle  v.  Braham  ii    20 

Gordon's  Case  ii      2 

Gould  V.  Hulme  i  304 

Goulding  v.  Herring  i  290 

Greaves  v.  Blanchet  i  200 

Green  v.  Rennelt  i  451 

Greenfield's  (Sir  R.)  Case,          i  127 

Grove  v.  Hart  i  349 

Guiiin  v.  Phillips  ii     68 

Gunsion  v.  Wood  ii  107 

Gurneth  v.  Derry  i     30 

Gurney  v.  Longlands  ii    23 

Guy  V.  Livesay  i  350 


H. 


Fairman  v.  Ives  i  230,  287,  316     Halford  v.  Smith 

Faulkland  (Ld.)  v.  Phipps  i  180,  188    Hall  v.  Smith 


ii  116 
i  411 


TABLE  OF  CASES. 


Hall  V.  Warner 

V.  Weedon 

's  Case 

Hammond  v.  Kingsmill 
Hancock  v.   Winter 
Harding  v.  Bulman 

V.  Greening 

Hare  v.  Meller 


ii  114 

i  88 

ii  138 

i  121 

i  373 

i  242 

ii  34 

i  254 


Hargrave  v.  Le  Breton  i  224,  320 

ii  104 
Harman  v.  Delany  i  155,  68,  232 

Harper  (Sir  J.)  v.  Beaumond      i  131 
Harrison  v.  King  i  66,     67 

V.  Stratlon  i     76 

V.  Thoruborough  i  54,  71, 

140, 


Hart's  Case, 
Hartley  v.  Herring, 


389 

382 


i  203,  405, 

443  ii    64 
Harvey  v.  Chamberlain  i  387 

Harwood  v.  Astley  (Sir  J.)  i  125,  442 
Hawkes  v.  Hawkey  i  415,  424 

Hayward  v.  Naylor  i    69 

Helly  V.  Hender  i  417 

Hensey's  (Dr.)  Case  ii    24 

Heriot  V.  Steward  i  142,  311,  313,  405 


Hunt  V.  Jones 

V.  Thimblethorpe 

Hunter  v.  French 

Hurst  V.  Bell 
Hyde  v.  Seyssor 


Incledon  v.  Berry 
Ireland  v.  Blockwell 
Isaacs  V.  Brand 

V.  Howard 


Jacob  V.  Mills 
JefFeries  v.  Duncombe 
Johns  V.  Gittens 
Johnson  v.  Aylmer 

V.  Bewick 

V.  Browning    i 


122 
79 
63 
13 

26 
281 
i  48 
i  283 
ii  124 
i  343 


Hearle  (Sir  J.)  v.  Osgood  i 

Hewlett  V.  Crulchley  ii 

Hext  V.  Yeoman  i 

Hicks's  Case  ii 

Hicks's  (Sir  Baptiste)  Case  i  156 
ii  231, 
Hill  V.  Yates, 
Hilsden  v.  Mercer 
Hilton  V.  Shepherd 
Hinde  v.  Thompson 
Hiichon  V.  Best, 
Hobart  V.  Hammond  i  281 

Hodgson  V.    Scarlett  i  65,  247, 

285,  287,  294,  460 
Holland  v.  Stoner  i    48 

Hollis  (Sir  John)  v.  Briscow      i  121 
Holmes  V.  Catesby  i  480 

Holtv.  Scholefield  i  42,  88,  421, 

ii  108,  111 
Hooker  v.  Tucker 
Home  V.  Powell 
Hoskins  v.  Ridgway 
Howe  V.  Prinn 
Hudson's  Case 
Hughes  V.  Winter 
Humber  v.  Ainge 
Humphreys  v.  Stansfield 
Hunt  V.  Bell 


435 

74 

3^2 

19, 

121, 

133 

11 

33 

112 

326 

il44, 
i 

145 
230 

ii  62 
i  69 
i  450 
ii  68 
ii  87 
i  352 


ii  75, 


236, 


77 
i  443 

i  283 
ii  74 
i  280 


i  80 
i  174 
i  475 
i  416 
ii  '123 
447 


ii  69,  80 

V.  Evans                            i  301 

V.  Sutton  1241,279,  280 

281,  436,  ii  T4 

Jones  V.  Heme,                     P.  D.  71 

i  24.  86 

V.  Stevens                       ii  6,  91 

Jordan  v.  Lewis                            ii  67 


K. 


Kemp  V.  Gee  i  243,  245 

King  V.  Bagg  i    49 

Kingv.  Giffin  i  158 

(Col.)  V.  Lake  i  156 

V.  Lake  (Sir  Edward)  i  155 

V.  Waring  i  301,  .359,  443, 

456  ii  60,  87,  103 
Kinnersley  v.  Cooper  i  462 

Kirk  V.  French  ii     67 

Knight  V.  Germain  ii     80 

Knightly  (Sir  John)  v.  Marrow  i  109 
Knobell  v.  Fuller  ii  95,     96 


Lake  v.  Hatton 


i   233  ii  253 


TABLE  OF  CASES. 


Lake  V.  King  i  244,  253, 254,  262, 

274,  460,  488 

Lamb's  Case  i  360  ii    16 

231,  235,  239,  351 

Lancaster  v.  French  i  135 

Lane  v.  Applegate  i  456,  564 

V,  Howman  i  47a 

Lawrence  v.  Woodward  i  109 

Layer's  Case  "  24,  28,  49 

Leach's  Case  ii  295 

Ledwith  v.  Catchpole  ii     80 

Lee  V.  Huson  }i    56 

Legate  v.  Wright  "  122 

Leggattv.Tollervey  ^i^    ^^ 

Leicester  (Earl  of)   v.   Walter  ii 

88,  89,  91,  92,  93,  97 


Mead  v.  Daubigny 
Medhurst  v.  Balaam 
Memis  v.  Jopp  and  others, 
Mercer  v.  Sparks 
Metcalf  V.  INIarkham 
Mills  V.  Spencer 


u 

i 

D. 

i 

i 


i  185 
i  449 
ii  322 
i  261 
i  450 


's  (Earl  of)  Case 

Leigh  V.  Webb     . 
Levi  V.  Milne 
Lewis  V.  Clement 

V.  Farrell 

V.Walter  i  273,  337,405, 

408,  418,  458,  459,  487 
Lewknor  v.  Crutchley  i  23,  34,  35 
Lilnal  V.  Smallman  u    79 

Lincoln's  (Earl  of  )  Case      i  182,  184 
Lloyd  V.  Morris  u  109 

Lowfield  V.  Bancroft  i  416 

Lowry  v.  Aikenhead  i  300 


Moises  V.  Thornton 

Molony  v.  Barlley 

Mcor  (Sir  Geo.)  v.  Foster 

. ^v.  Moore 

Moore  v.  Meagher 
Mordant  (Lord)  v.  Bridges 
Mordington's  (Lord)  Case 
Morgan  v.  Hughes 
Morris  v.  Langdale    i   139, 

478,  a 

Morrison  (Dame)  v.  Cade  i 


11 
ii  4, 

ii 
i 

ii 
i 
i 
i 
i 
207, 


V. "Kelly'  ii  67, 

^ .'s  Case  ] 

Mors  V,  Thacker  ^ 
MuUett  V.  Hulton       ii  15,  87,  «b, 

Muney's  Case  .] 

Mure  V.  Kaye  M 

Musgrove  v.  Bovey  ' 


56 

199 

33 

223 

343 

473 

98 

9 

50 

36 

89 

203 

186 

326 

450 

65 
430 

68 
435 
360 

98 
103 

73 
126 


M 

Macclesfield's  (Earl  of ) 
M'Cloughan  v.  Clayton 
M'Dougall  V.  Claridge  i 

M'Leod  V.  Wakeley 
Mackenzie  v.  Read 
Macgregor  v.  Thwaites 
Macpherson  v.  Thoytes 
Maitland  v.  Golding 

—  V.  Goldney 

Maloney  v.  Bartley 
Manning  v.  Avery 

■  V.  Fitzherbert 

Mason  v.  Jennings 

. V.  Thompson 

Matthews  v.  Cross 
May  V.  Brown 

Mayne  v.  Digle 
— —  V.  Fletcher 


Case      i  342 

ii     73 

322,  165, 

167,  252,  336 

ii     35 

P.  D.     33 

i 

ii    20 

ii  103 

i  335,  347 

i  251 

i  192 

i  356 

i  157 

i    52 

i  195 

i  410 

ii  100 

i    39 

ii      9 


N. 

Nelson  v.  Dixie 
I-  V.  Hawkins 

. -v.  Smith 

Neve  V.  Cross 
Newman  v.  Aleyn 

—  V.  Bailey 

Newsam  v.  Carr 
Newton  v.  Stubbs 


i  368 
ii  119 
i  390 
i  108 
i  207 
i  479 
1  71 
i  364 


Norfolk  (Duke  of)  v.  Anderton,  1  345 
Northampton's  (Earl  of)   Case,  i 

69,  329,  332,  338,  u  103 

, (John  de)  Case  ii  235, 

^  237,  269 

(Mayor  of)  Case      ii  278 

Norwich's  (Bishop  of )  Case        i  186 
Nutt's  (Elizabeth)  Case       ii  30,    33 


O. 

Ogden  V.  Turner, 
Oldham  v.  Peake 
Onslow  V.  Home,  i 

Orpwood  V.  Barkes 


i  15,  40,  14,  199 
ii     51 
41,  42,  120, 

123,  125 
i  373 


TABLE  OF  CASES. 


Osborne  v.  Brookes 
Oliver  v.  Bentinck 


i  390 
i  255 


Pain  V.  Rochester  n 

Paine's  (Samuel)  Case  ii 

Parkes  v.  Langley  i 

Parrolt  v.  Fishwick  ii 

Parry  v.  Coliis  i 

Pasley  v.  Freeman 
Pasquin's  Case 
I'attison  v.  Jones 
Peachum's  Case 
Peacock  v.  Raynal  (Sir  G.) 
Peake  v.  Oldham  i  56,  65,  95,  191 , 
204,  209,  394,  429, 
Pearce  v.  Whale 
Peard  v.  Johnes 
Pembroke  (Earl  of)  v.  Staniel 
Pen  fold  V  Westcote 
Pennyman  v.  Rabanks 
Phillips  V.  Jansen 


■  V.  Jarwen 
V.  Shaw 


Pickering's  (Lewis)  Case 
Pierepoint  v.  Shapland 
Pickford  V.  Gutch 
Pigot's  Case 
Pine's  (Hugh)  Case 
Pinkney  v.  Collins 
Pitt  V.  Donovan 

Plunkettv.  Cobbett 
Poe's  (Dr.)  Case 
Pollard  V.  Mason 
Pope  V.  Foster 
Portman  (Sir  H  )  v.  Stowell 
Powell  V.  Plunkett 
Power  V.  Shaw 
Preston's  (Lord)  Case 
Prideaux  v.  Arthur 
Prosser  v.  Bromage 

Prynne's  Case, 
Purcell  V.  Macnamara 

Purdy  V.  Stacey 
Pyne's  Case 


1 
ii 
i 
i 

ii 

ii60, 

ii 

i 

ii  166,  167, 

i 

i 

ii 

ii33, 

i76, 

i66, 

i 

i 

i237, 

ii 

ii24, 

ii 

i 

ii 

ii 

i 

ii 
i 
i 


80 
233 
450 

76 
406 
224 
100 
301 
169 
154 

439 

7 

136 

188 

51 
317 
133 

13 
210 
451 
231 

67 
3 
236 
168 
342 
320 
104 

57 
103 

67 
451 

40 
304 
124 

28 
285 
120 

53 
368 
451 

75 

37 
362 


Ram  V.  Lamley 
Rastall  V.  Stratton 
Ravenga  v.  Macintosh 
Read  v.  Hudson 
Redman  v.  Pyne 
Reed  v.  Taylor 


i  250 
i  451 

i  281 
i  138 
i  137 
i  446 
ii     74 

Rees  V.  Smith  ii    67 

Retina  v.  Bedford  ii  163,  186 

. V.  Drake  (Dr.)  i  363,  366,  382 

V.   Langley    ii   196,  198, 

199,  209,  269 

V.  Nun  ii  199 

V.  Wiightson  ii  197,  199 

Revett  V.  Braham  ii  26,     27 

Rex  V.  Abingdon,  (Lord)   i  213, 

240,  262,  274 
ii  245,  308 
i  416,  423 
ii  289,  306 
i  214 
ii  31,  33,34,  351 
ii     49 
ii  361,  366 
ii  143,  144 
i  428 
u  278,  288 
i  326 
ii  257 
i  365 
ii  136,229,233,  234 
ii  15,     41 
ii  281,  303 


—  V.  Amphlett 

—  V.  Archer 

—  V.  Atwood 

—  V.  Aylelt 
V.  Bate 

—  V.  Bayley 

—  V.  Bear 

—  V.  Beere 
V.  Benfield, 


V.  Benfield  and  Sanders  ii       361 
V.  Berry 
V.  Bickerton 


V.  Birch 

V.  Bliss,  Clerk 

V.  Brereton 


1  370 

i  233 

ii  252,  282.  290 

i  381 

ii  186 

i 

361,  375,  380 

ii  162 

ii  279 

ii  163,  173 

ii  311 

ii  366 


Radcliffe  (Lady)  v.  Shubley 


-  V.  Brewster 

-  V.  Brown 

-  V.  Browne  (Dr.) 

-  V.  Budd 

-  V.  Bunts 

-  V.  Burdett  ii  38,  39,  93,  238, 
244,  304,  306,  312,  364 

-  V  Burke  it  303 
-V.  Carlile                      i261,  263 

ii  33,  143,  150,  320 

V.  Carter  ii  42,  237 

V.  Cator  ii  27,     28 

T.  Chappel  ii  286 

i  369    V.  Chrichly  ii  212 


TABLE  OF  CASES. 


Rex  V.  Clarke 

■ V.  Clement 

— —  V.  Clerk 

V.  Cohbett 

V.  Creery 


11 

iiSGl, 

i419,  li 

ii  l!i3, 

ii 


V.  Creevey  i  214,  254.  274, 

460  ii 

V.  Cromwell  ii 

V.  Culpepper  (Sir  T.)         ii 

V.  Curl  ii 

■         V.  Culhel  ii 

V.  Darby  ii    195,    190,  198, 

199,  212, 
— —  V.  Davison  ii 

■ V.  Dawson  i 

V.  De  Berenger  and  Ors     ii 

""""  ii 

ii  31,  33. 

ii 

ii 

ii 

ii  289, 

i 

i  325  ii 

i  439  ii 

ii 

ii 

ii 

i  261,  265  ii 


V.  D'Eon 

V.  Dodd 

V.  Dormer 

V.  Dover 

V.  Drakard 

— —  V.  Draper 

V.  Ellis 

V.  Enes 

V.  Evans, 

V.  Farrington 

V.  Fielding 

■'         V.  Finnerty 

V.  Fisher 

V.  Fleet   i  261,  265,'  266  ii 

V.  Foster  i 

V.  Franklin  ii 

V.  Fuller  i 

V.  Gilham  ii 

V.  Girdwood  ii  38,  41, 

V.  Gordon  (Ld.  G.)     ii  217, 

V.  Griffin  ii  214, 

V.  Hall  ii  35, 

V.  Hankey  ii 

V.  Harris  ii  29, 

V.  Harrison  ii 

V.  Hart  ii 

— —  V.  Hart  and  White  ii 

V.  Harvey  i 

ii  53,  181, 

. V.  Has  well  ii 

V.  Haydon  ii 

V.  Hensey  •         ii 

'         V.  Herries  ii 

• V.  Higgins  ii 

V.Hill  ii 

V.  Holland  ii 

V.  Holloway  and  Allen        ii 

V.  Holt  i  407  ii  308,  309,  326, 

Vol.  I 


188 
266 
341 
194 
183 

245 
69 
24 

157 
33 

292 
262 
439 
224 
216 

34 
289 

29 
194 
364 
405 
282 
224 
183 
291 
367 
194 
275 

90 
188 
366 
266 

61 
219 
285 
313 
287 

33 
162 
283 

43 
215 
243 
288 
291 

28 
285 
208 
156 
280 
289 
359 

2 


Rex  V. 


—  V. 

V, 


Hone  ii 

Home    i    56,    398,   422, 
426  ii  lUl,  304, 
Hucks  i 

Hulpin  ii  363, 

Hunt  ii 

Incledon  ii 

Jenneaur  i  326  ii 

Jenour,  ii 

Johnson  ii  34,  35,  36,  39, 
Jollifto  ii  275 

Jones  (Gale)  ii 

Kearsley  ii 

Kettle  worth  ii 

Kinaston  ii 

Knell  ii  42, 

Lambert  and  Perry  ii  175, 
185,  307, 
Lawrence  ii 

Leafe  ii 

Lee  ii 

Lofield  i 

Lovell,  ii 

Marsden  i 

Marshall  ii 

Martin  ii 

Mathews  i 

Mayor  and  Dowling         ii 
Middleton         ii  36,  263, 


Miles 

Mozagora 

Naber 

Nutt   (Richard) 


11 


O'Connor 
.  Orme 

Osborne 
,  Owen 

Payne 

Pearce 

Peltier 

Penny 

Phillips 

Pinkeiton 

Pocock 

Ravensworth 

Rayner 

Read 

Revell 

Roberts  P, 

Rosenstein 

Salisbury 

Scott 


11 

ii 

ii 

164, 

181, 

ii 

ii  213, 

ii  213, 

ii  186,  203, 

i451  ii  164  165, 

ii  49, 

ii 

ii 

i  214  ii 

ii 

ii  198,  199, 

i 

ii 

ii  156,  157, 

ii  195, 

D.  45,  129  i 

ii  254,  280, 

ii 

ii 

ii 


326 

306 

451 

o64 

50 

69 

282 

214 

194 

286 

194 

174 

69 

2H9 

237 

320 

186 
J  99 

277 
271 
194 
416 
285 
310 
420 
204 
264 
287 
183 
365 

342 
24 
276 
276 
34-2 
166 
56 
218 
198 
208 
363 
277 
153 
203 
158 
198 
23-2 
363 
230 
240 
183 


10 


TABLE  OF  CASES. 


Rex  V.  Sedley  (Sir  Chas.)  ii  155, 

157,  158,  159 

V,  Selby  ii  197 

V.  Shaw  i  405 

V.  Sharps  ii  290 

V.  Sharpness  ii  361 

V.  Shebbeare  (Dr.  J  )  ii  164, 

165,  S42 

V.  Shelley 

V.  Shipley 

V.  Smith 

V.  Smollett  (Dr.) 

V.  Souiherton 


Sparrow 

Staples 

Stockdale 

Summers 

Sutton 


ii      2 

ii  344 

ii  69,  208 

ii  278 

ii  208 

ii  284 

ii  276 

ii  204 

ii265,  302 

ii  309,  310 


lip) 


Taylor  ii  137,  143,  144,  285 
Thicknesse,    Esq.  (Phil- 

ii  278 
Thompson  and  others      ii%338 

—  V.  Topham  ii  43,  212,  213 

—  V.  Tutchin  ii  163,  187,  193,  340 

—  V.  Vint  ii  217,  219 

—  V.  Waddington  ii  143 

151,  221,  360 

—  V,  Walter  ii  33,  212,  362 

—  V.  Warte  ii  276 

—  V.  Watson  and  others  i  58  ii 

35,  38,  41,  96,  200,  274,  313 

—  V.  Webster  ii  282 

—  V.  Wegener  i  438 

ii  13,  307,  311,  324 

—  V.  Weltje  ii  199 

—  V.  White  ii  33,  274 

—  V.  Wiatt  ii  :^63 

—  V.  Willett  ii  287 

—  V.  Williams  i  257,  258 
ii  41,  50,  141,  150,  174,  274,  289 

—  V.  Wilson  ii  362,  366 

—  V.  Withers  ii  354,  362 

—  V.  Woodfallii291,342,344,  351 
Woolston        ii  138,  144,  145 


V.  Wrennum 

V.  Wright 

V.  Young 

Reynolds  v.  Kennedy 
Rich  V.  Holt 
Roberta  v.  Camden   i 

Robmson  v.  Jermyn 
Robinson  v.  Macdougall 


ii  367 

i  257,  263 

ii  245,  287 

i  366 

i  280,  281 

1  490,  ii  109 

20,  58,  75, 

428  ii  51 
i  168 
li  323 


Rodriguez  v.  Tadmore  ii    97 

Roe  V.  Rawlings  ii     26 

Rodgers  v.  Clifton  (Sir  Gervase)  i  296 

■ V.  Gravat  i     39 

Ross  V.  Lawrence  i  412 

.V.  Mackerrel,  P.  D.  44 

Rowe  V.  Roach  i  412,  482 

Russell  V.  Corns  i  354 

( Sir  William)  v.  Ligon  i     37 

V.  Macquester  ii    56 


Sacheverell's  (Dr.)  Case     i  367,  368 


Salisbury  (Bishop  of)  v.  Nash 

Salter  v.  Brown 

Samuel  v.  Payne 

Sandwell  v.  Sandwell 

Saunders  v.  Mills 

Savage  v.  Robery 

Savile  v.  Jardine 

Saville  v.  Roberts 

Scoble  V.  Lee 

Scott  V.  Baiilie 

Seaman  v.  Bigg 

Sellers  v.  Till 

Seycroft  v.  Dunker 

Shaftesbury's  (Ld)  Case 

Shaloner  v.  Foster 

Shaw  V.  Thompson 

Sid  nam  v.  Mayo 

Sidney's  Case 

(Colonel)  Case 

Skutt  V,  Hawkins 
Smale  v.  Hammon 
Smead  v.  Badley 
Smith  V.  Croker 

V.  Flynt 

V.  Hixon 

V.  Hodgkins 

V.  Macdonald 

V.  Richardson  i 

Smith  V.  Spooner 

V.  Taylor  ii  3,  10 

V.  Walker  ii  71 

V.  Wisdome  i  64 

V.  Wood  i  456  ii  87 

Snagg  V.  Gee  i  81,  2,  396 

Snede  v.  Bailley  i  145  ii  63 

Snell  V.  Webling  i  109 

Snowdon  v.  Smith  ii  93,  94 


1  467 

i    29 

ii     80 

ii     13 

i  273 

i  413,  426 

i  160,  413 

193  ii     75 

i    40 

P.  D.     64 

i  128 

i  405  408 

i  138 

i  344 

i  386,  426 

i    90 

i  380,  381 

ii  20,  24,  169 

ii    25 

i  385 

i  13,  166 

i  441 

i  347,  348 

i     32 

i  352 

i  304 

ii  73,     79 

222,    465, 

466,  470 

i  317,  318 

ii  104,  105 

ii  3, 

ii 


TABLE  OF  CASES. 


11 


7i 
74 
67 
13 
413 


Snowe  (Sir  R  )  v. i  396 

Soane  v.  Knight  i  305 

Somers  v.  House  i     51 

Southam  v.  Allen  i  13S 

Spall  V.  Massey  i  174,  407 

Speed  V,  Parry 

Spencer  v.  Jacob 

Spooner  v.  Gardiner 

Stanhope  v.  Blith 

Stanton  v.  Smith 

Stevens  v.  Aldridge 

Stewart  v.  Allen 

Stiles  V.  Nokes    i  261,  269 

Stirley  v.  Hill 

Stockley  v.  Clement 

Stoddart  v.  Palmer 

Stodder  v.  Harvey 

Stone  V.  Smalcombe 

Strachey's  Case 

Stranger  v.  Searle 

Strong  V.  Foreman 

Stuart  V.  Lovell 


Turner  v.  Turner 
Tutchin's  Case 
Tuihill  V.  Milton 
Tuity  V.  Alewin 


ii  54, 


1 

ii 

ii 

i 

i 

i  405 
P. D.  82 
,  472,  490 

i     70 
it  305,  306 

i  451 

i  281 

i  32 
i  357,  478 

ii    20 

ii 

i 
58, 

i 

i 


64 
311 

59 
355 

78 


Subly  V.  Mott 

Slump  V.  White 

Swiihen  and  Wife  v.  Vincent  and 

wife  i  355 
Sydenham  (Sir  John)  V,  Man      i    62 

Sydenham's  (Sir  J.)  Case  i  357 

Syke's  V.  Dunbar            ii  70,  72,     75 

Sylvester  v.  Hall  ii    67 


Tabartv.  Tipper  i  41,  308,   311, 

380,  381  ii  100 


Talbot  V.  Case 
Tassan  v.  Rogers 
Tate  V.  Humphreys 
Taylor  v.  Cooke 
Tempest  v.  Chambers 
Terry  v.  Hooper 
Thomas  v.  Jackson 
Thompson  v.  Bernard 

V.  Shackell 


ii    73 

i  420 
i  403 
ii  136 


U. 


Underwood  v.  Parkes  i  467  ii  87,     93 
Upton  V.  Pinfold  i    68 

Upsheer  v.  Belts  i  481 


81 

143 

55 

26 

67 

129 

127 

86 

86. 

304 

162 

33 

65 


Vaughan  v.  Ellis. 

V.  Leigh 

Vessy  V.  Pike 
Vicars  v.  Wilcocks 

Villars  v.  Mousley 


Thorley  v.  Kerry  (Lord) 

Tibbott  V.  Haynes 

Tilk  V.  Parsons 

Tindall  v.  Moore  i  430 

Townsend  (Ld.)  v.  Hughes  (Dr.) 

i  178,  181  ii  106 
Turner  v.  Sterling  i  144 


i  145 
i  145 

i  465 
i  204 
ii  65 
i  114 

158,  167,  168 


W. 

Waithman  v.  Weaver  ii     91 

Wakeley  v.  Johnson  ii  100 

Walden  (Sir  Lionel)  v.  Mitchell  i     39 


Wallace  v.  Alpine 
Walter  v.  Beavor 
Walters  v.  Mace 
Ward  V.  Reynolds 
Warne  v.  Chadwell 
Wate  V.  Briggs 
Wateifield  v 

of) 
Watson  v,  Reynolds 
Watson's  Case 
Weatherstone  v 


ii  56,  58, 


77 

93 

373 

57 

102 

451 


Weaver  v.  Loyd 

Webb  V.  Poor 
Weller  v.  Baker 
West  V.  Phillips 
Weston  v.  Dubniet 
Wetherell  v,  Clerkson 


Whitlington  v.  Gladwin 
Wicks  V.  Fentham 

's  Case 

Williams  v.  Callender 
Wilner  v.  Hold 


Chichester  (Bishop 

i  259 
ii  104 
i  210 
Hawkins  i  223, 

294,  299,  456 
i  483 
ii86,  101,  103 
i  81 
i  347 
i  105 
i  247 
i  441 
li  62 
138,  142 
ii  69 
i  35 
ii    90 


i  394,  426 


12 


TABLE  OF  CASES. 


Wilson  V.  Stephenson 

Winchester's  (Ld)  Case 
Wiseman  v.  Wiseman 
Wood  V.  Krovvn 

— V.  Guston, 

. V.  Merrick 

Wood  fall's  Case 
Woodford  V.  Ashley 
Woodward  v.  Downing 
Woolnoih  V.  IVleadows  i 

75,  227,  331,  332,  430,  473  ii  103 
Wright  V.  Clements  i  368 


i  326 
ii  84 
i  185 
100,  388 
i  367 
i  283 

66,     67 

ii    34 

i  450 

i  162 

69, 


Wyatt  V.  Gore 
Wyld  V.  Cookman 


Y. 

Young  V.  Pridd, 
Yrissair  v.  Clement 


Z.  - 


ii  50,     98 

i  477 


ii  11,  87 


351 
320 


Zenobio  v.  Axtell  i  160,  363,  368,  411 


TABLE  or  CASES 


CITED  IN  THE  NOTES  ADDED  TO  THIS  EDITION. 


Alderman  v.  French,  ii  96,     99 

Alexander  V.  Alexander,  i  32,     34 

Allen  V.  Crofoot  i  204 

Andreas  v.  Koppenheafer,  i  37,     43 

Andrews  V.  Woodman,  i  61,  392 

Andrews  v.  Van  Duzer,  i  236,  466 

Anson  V.  Stewart  i  235 

Austin  V.  Hanchett,  i  340 

ii.  96 

Avarillo  v.  Rogers  i  370 


Bradley  v.  Heath  i  208,  321,  455 

Bradt  v.  Towsly  i  203 

Brooke  v.  Sir  Henry  Montague 


Brooker  v.  Coffin  i  2i,  28 

Brooks  V.  Bemiss  i 

Brown  V.  Croom 

Btunson  v.  Lynda  i 

Buford  V.  McLuny,  i 

Burlingham  v.  Burlingham, 

Bunch  V.  Nickerson 

Burton  v.  Worley 

Buys  and  wife  v.  Gillespie, 


456 

43 

96 

455 

96 

96 

304 

134 

456 

28 


B. 

Backus  V.  Richardson 
Barbaud  v.  Hookham 
Barnes  v.  Webb 
Bayard  v.  Passmere 
Baylis  V.  Lawrence, 

Beach  v.  Ranney 
Beach  V.  Beach 
Beardsley  v.  Maynard, 
Bevis  V.  Slory 
Bell  V.  Bugg 
Binns  V.  McCorkle 
Blake  V.  Piiford 
Blanchard  v.  Thorn, 
Bodwell  V.  Swan  and  wife, 
Burnman  v.  Boyer 
Boulton  V,  Clapham 


i  134  Caldwell  v.  Abbey 

i  156  Chaddock  v.  Briggs 

i  466  Chalmers  v.  Shackell, 

ii  262  Chapman  v.  Gi  let, 

i  214  Charlton  v.  Walton, 

ii  358  Chase  v.  Whitlock 

i  202,  349  Cheatwood  v.  Mayo 

i  349  Chipman  v.  Cook 

ii  101  Ciason  v.  Gould 

i     38  Cockayne  v.  Hodgkinson, 

i  367  Coffin  v.  Coffin 

i  340  Coleman  v.  Southwick     ii  97,  99,  106 

i  246,  455  Commonwealth  v.  Clapp,  ii  194  ii  253 

i  246,  455  Cooper  v.  Bissell  ii  108 

ii    90  Cooper  v,  Lawson  i  350 

i    61  Cornelius  v.  Van  Slyck,  i     76 

i  250  Cowden  v.  Wright  i  351 


1 

i 

ii  97, 

i 

ii  97, 

i  24, 

ii 

i  37, 

i 

i 

ii 


87 

130 

99 

90 

99 

87 

97 

130 

342 

455 

106 


14 


TABLE  OF  CASES. 


Cramer  v.  Riggs 
Cummen  v.  Smith 
Curry  v.  Walter 


i  123,  194 
ii  6 
i  456 


D. 

Davis  V.  Lewis 
De  Crespigny  v.  Wellesley, 
Delany  v.  Jones 
Demarest  v.  Haring 
Dexter  v.  Taber 
Dickinson  v.  Barber 
Dole  V.  Lyon 
Duncombe  v.  Daniel 
D  unman  v.  Bigg 


E. 

East  V.  Chapman 
EbersoU  v.  King 
Edmonson  v.  Stevenson, 
Eifert  v.  Sawyer 
Ell:ott  V.  Ailsbury 
Else  V.  Ferris 


i  340 
i  340 
i  455 
i  59 
i  60,  93 
ii  241 
i  340 
i  194 
i  325,  455 


ii 

97 

348 

455 

ii 

96 

28, 

43 

i 

466 

Hall  V.  Smith 
Hamilton  v.  Dent 
Hare  v.  Mellen 
Harris  v.  Huntington 
Harris  v.  Lawrence 
Harwood  v.  Astley 
Hastings  v.  Lusk  i 

Hersh  V.  Ringwalt 
Hinkley  v.  Emerson 
Hodgson  V.  Scarlett,  i 

Hogg  v.  Wilson 
Hollingsworth  v.  Duane 
Holt  V.  Scholefield 
Home  V.  Bentinck,  i 

Hopkins  V.  Beedle  i 

Horner  v.  Marshall's  admx. 
Hotchkiss  v.  Lathrop 
Hotchkiss  V.  Oliphant 
Howard  v.  Thompson,   208, 
Hunt  v.  Algar 
Hyde  v.  Bailey 


139 

89 

456 

355 

383 

194 

250,  456 

i  340 

i     93 

455,  456 

ii  108 

ii  262 

1    43 

241,  456 

22  ii  113 

ii  241 

ii    97 

ii    99 

246,  455 

i    21 

ii    96 


Inman  v.  Foster, 


i  340  ii     96 


F. 


Ji 


Fairman  v.  Ives 

Finch  V.  Gridley's  exrs 

Findlay  v.  Bear 
Fisher  v.  Clement 
Flint  v.  Pike 
Foot  v.  Brown 
Forward  v.  Adams 
Fowle  V,  Robbins 

G. 

Gibson  v.  Williams 
Gidney  v.  Blake 
Gilman  v.  Lowell, 
Godson  v.  Flower 
Gorham  v.  Ive3 
Gould  v.  Weed, 
Grant  v.  Aslle 


H. 


Haire  v.  Wilson, 


1246, 

455 

Jacobs  v.  Fyler 

358 

Jarvis  V.  Hathaway 

119 

Jekyl  V.  Sir  John  Moore, 

6 

Johnson  v.  Evans 

93 

358 

466 

K. 

136 

123 

Kean  v.  McLaughlin, 

89 

Kemp  V.  Gee 
Kennedy  v.  Gregory 
Kennedy  v.  Lowiy 

i  60,  61, 

392 

King  V.  Parsons 

i  110, 

390 

Kirkman  v.  Oxley 

ii  96,  97, 

99 

Knight  V.  Gibbs 

455 

Knobell  v.  Fuller 

60 

Kyzer  v.  Grubbs 

ii 

110 

ii 

108 

L. 

Lake  v.  Hatton 

i  214  ii 

358 

Lake  v.  King 

i  22 
1  325 
1  456 
i  456 


250 

ii 

57 

456 

i  340 

'  ^1 

97 

360 

235 

ii 

97 

455 

ii 

96, 

4  97 

i 

366 

I  235 
i  456 


TABLE  OF  CASES. 


15 


Lamed  v,  BufRnton, 

Lathrop  V.  Hyde 
Leicester,   Earl  of  v. 

Leister  v.  Smith 
Levi  V.  Milne 
Lewis  V.  Hawley 
Lewis  y.  Few 
Lewis  V.  Walter 
Lewis  V.  Clement 
Lillie  V.  Pritt 
Lindsey  v.  Smith 
Livingston  v,  Rogers 
Looan  V.  Steele 
Ludlum  V.  McCuen 
Lyle  V.  Clason 


M. 

Mf^Alexander  v.  Harris, 
Mc(Jlau^liry  v.  Wetmore 
McConnell  v.  McCoy 
McDoujjall  V.  Claridge, 
McKinley  v.  Rob 
McLuny  v.  Bufford 
McPherson  v.  Chadell 


i 

208 

ii  97, 

99 

i 

304 

Walter,    ii 

95,  9G, 

97 

340 

ii 

358 

139 

i  194, 

383 

340 

472 

456 

i  37,  130, 

385 

li 

112 

61 

43 

ii  14, 

112 

Maitland  v.  Goldney 
Mapes  V.  Weeks 


ii  96,  97 


i  37 
i 
i 


Mappa  V.  Pease 

Martin  v.  Still  well 

Maison  v.  Buck 

Mowbray  v.  Barker 

Mayne  v.  Digle 

Mayrant  v.  Richardson, 

Middleton  and  wife  v.  Calloway,  i 

Miller  v.  Kerr 

Miller  V.  Miller,  i  64,  366 

Miller  V.  Maxwell 

Miller  V.  Parish 

Morris  v.  Duane,  i  340 


96 

422 

370 

455 

60 

96 

119 

6 

340 

340 

99 

383 

43 

96 

97 

43 

194 

96 

340 

370 

392 

43 

99 


0. 


O'Donaghue  v.  McGovern,  i  246, 

325,  455 
Ogden  V.  Turner  i    43 

Olmstead  v.  Miller  i  202 

Onslow  V.  Home  i  43,  194 


P. 

Paddock  v.  Salisbury 
Pasley  v.  Freeman 
Palton  V.  Gurney 
Pattison  v.  Jones 
Peiton  V.  Ward 
People  V.  Fieer 
People  V.  Rugoles 
People  V.  Croswell 
Pluiiket  V.  Cobbett 
Powell  V.  Dubois 
Prosser  v.  Bromage 
Purdy  V.  Stacey 
Purple  V.  Horton 


R. 

Ram  V.  Lamley 
Rathbon  v.  Emigh 
Respublica  v.  Oswald 
Respublica  v.  Duane 
Rex  V.  Abingdon 
Rex  V.  Creevy 
Rex  V.  Hart 
Rex  V.  Burdett 
Rex  V.  Home 
Riggs  v.  Denniston 
Rogers  V.  Clifton 
Root  V.  King 
Runkle  v.  Meyer 
Ryckman  v.  Delavan 


S. 


i  5 


ii  96 
i  325 
i  355 
i  294 
i  88 
ii  262 
ii  137 
ii  252 
i  235 
i  194 
i  325,  455 
i  43 
ii  97 


i  456 
i  134 

ii  262 
ii  268 
i  456 
i  456 
i  325 
ii  358 


194  ii  96, 


61 
164 
455 

97 
340 
347 


N. 


Neal  V.  Lewis  ii  106 

Nestle  V.  Van  Slyck 
Ney  v.  Otis 
Niven  v.  Munn 
North  v.  Van  Slyck 
Northampton's,  Earl  of  case, 


108 
i  385 
i  61 
i  89 
i  374 
i  340 


Saunders  v.  Mills  ii     97 

Saunderson  v.  Ruddes  i  194 

Savile  v.  Jardin  i     24 

Sayre  v.  Jewett  i  385 
Schock  v.  McChesney  i  251,  456  ii     57 

Seymour  v.  Merrills  ii     96 

Shaffer  v.  Kintzer  i     43 

Shepard  v.  Merrill  i  466 


16 


TABLE  OF  CASES. 


Shipley  v.  Todhiinter 
(Simpson  v.  Broukes 
Sniiih  V.  Minor 
Sniiwdon  v.  Smith 
Souihwick  V.  Stevens 


Sprinpstein  v.  Field 

Siaffnrd  V.  Green 

State  V.  Allen 

Steele  v.  Southwick 

Stevenson  v.  Hayden 

Sievens  and  Cagger  v.  Adams     i  119 

Siokes  V.  Stiickey  i     97 

Sunaner  v.  Bael  i  347 


i  455 
i  194 
i  £8 
ii  97 
i  383 
ii  28,  106 
ii  96 
i  22  ii  1(18 
ii  252 
i  5 
i  24,     87 


Thomas  v.  Rumsey 
Thomas  v.  Crosvvell 

Thorn  V.  Blanchard 
Tilloison  V.  Cheetham 
Tiius  V.  Folleit 
Tobias  v.  Harland 
Todd  V.  Hawkins 
Treat  v.  Browning 

Tarrill  v.  Dolloway 


355 

i  422 

ii     55 

i  246,  455 


ii  96, 


.83 
385 
137 
455 
340 

97 
194 


U. 

Underwood  v.  Parks  i  232 

ii  97 
Union  Turnpike  Co.  v.  Jenkins  ii  lOS 
United  Slates  v.  Hudson  ii  161 


Van  Ankin  v.  Westfall,  i  21,  466 
Vanderxee  v.  McGregor  i  246,  455 
Van  ]Sess  v.  Hamilton  i  43,   164, 

236,  481 

Van  Rensselaer  v.  Dole                i  99 

Van  Spike  v.  Cleyson  i  223,  325,  455 
Van  Vechten  v.   Hopkins    i   60, 

342,  392,  422 

Vick  V.  Whitfield                        ii  96 

W. 


Wallis  V.  Mease 
Walmsley  v.  Russell 
Wahon  V.  Singleton 
Ward  V.  Clark 
Warr  v.  Jolly 
Watson  V.  Hampton 
Watts  V  Frazer 
Weatherstone  v.  Hawkins  i 

Widrig  V.  Oyer 

Williams  and  wife  v.  Mayer 

wife 
Williams  v.  Hill 
Wiliiianh  V.  Mountford 
Wolcott  V.  Hall 
Woodward  v.  liander  i 

Woulnoth  V.  Meadows 
Wormouth  v.  Cramer 


Wyatt  V.  Gore 


Young  V.  Miller 


ii 

57 

43 

59 

22 

208 

22 

ii 

101 

208, 

325, 

455 

i 

43 

and 

ii 

96 

202 

208 

ii 

96 

246, 

455 

61 

369 

ii 

97 

325 

i  34,     43 


CONTENTS 

OF 

VOLUME  I. 


CHAPTER  I. 

DIVISION  OF  THE  S  UBJECT— ACTION  ABLE  WORDS— CRIM- 
INAL _CHARGE  1 

CHAPTER  11. 
WORDS  IMPUTING  AN  INFECTIOUS  DISORDER    ...        113 

CHAPTER  in. 

WHERE  THE  IMPUTATION  AFFECTS  A  PERSON  IN  HIS  OF- 
FICE, PROFESSION,  OR  BUSINESS 117 

CHAPTER  IV. 

WHERE  THE  WORDS  TEND  TO  THE  PARTY'S  DISINHER- 
ISON OR  AFFECT  HIS  TITLE  TO  LAND     .        .        .         .         U3 

CHAPTER  V. 

WHERE  THE  SLANDER  IS  PROPAGATED  BY  PRINTING, 
WRITING  OR  SIGNS 148 

CHAPTER  VI. 
OF  SCANDALUM  MAGNATUM  .        •      '  •        •        •        •        175 

CHAPTER  VII. 

OF  SPECIAL  DAMAGE 19° 

CHAPTER  VIII. 
OF  PUBLICATION  AND  INTENTION— MALICE  IN  LAW    .        209 
Vol.  I.  3 


18  CONTENTS. 

CHAPTER  IX. 
JUSTIFICATION— TRUTH 229 

CHAPTER  X. 

OF  PUBLICATIONS   MADE  IN  THE  COURSE  OF   PARLIA- 
MENTARY OR  JUDICIAL  PROCEEDINGS     ....       239 

CHAPTER  XI. 
PARLIAMENTARY  AND  JUDICIAL  REPORTS        ...        257 

CHAPTER  XII. 
PROBABLE  CAUSE 276 

CHAPTER  Xni. 
MALICE  IN  FACT 299 

CHAPTER  XIV. 
REPETITION  OF  SLANDER  INVENTED  BY  ANOTHER        .     329 

CHAPTER  XV. 
OF  THE  PROCESS  AND  PLEADINGS 341 

CHAPTER  XVI. 
OF  THE  DEFENDANT'S  PLEA 453 

CHAPTER  XVII. 
OF  THE  REPLICATION 492 


PREFACE 


SECOND    AMERICAN    EDITION. 

Before  publishing  this  edition  all  the  cases  decided  in  the  English  and 
American  courts  on  the  subject  of  defamation,  since  the  pubhcation  of  the 
first  American  edition  of  this  worlc,  Avere  carefully  read  and  considered, 
and  a  note  taken  of  every  case  containing  amj  thing  new,  illustrative  of 
principles  previously  settled,  or  calling  in  question  or  casting  a  doubt  upon 
such  principles.  Amongst  those  of  the  former  class  are  the  cases  of  Kelly 
V.  Vartington,  2  Nev.  &  M.,  460  :  4  Barn.  &  Aid.,  700  ;  Wright  v.  Wood- 
gate,  2  C.  M.  &  E.,  573  :  1  Tyr.  &  G.,  12  ;  Padmore  v.  Lawrence,  11  Adol. 
&  EIHs,  380;  Todd  v.  Hawkins,  8  Carr.  &  Payne,  888  :  2  M.  &  Rob.,  20  ; 
and  Blachham  v.  Piigh,  2  Mann.  Gr.  &  Sc,  611 ;  and  of  the  latter  class 
are  Fountainv.  Boodle,  3  Queen's  B.  R.,  5  :  2  Gale  &  D.,  455  ;  and  Cox- 
head  V.  Richards,  10  (English)  Jurist,  p.  984,  anno  1846.  All  these  cases 
are  upon  the  subject  oi privileged  communications,  and  will  be  found  noted 
in  Vol.  II.,  p.  58,  note  (2).  The  two  last  named  cases,  and  particularly 
that  of  Coxhead  v.  Richards,  are  very  interesting,  and  have  been  supposed 
to  unsettle  the  law  on  the  subjects  to  which  they  relate ;  but  such  suppo- 
sition Avas  erroneous,  as  is  shown  in  the  note.  In  this  note  an  error  has 
occurred  by  the  substitution  of  the  word  post  for  ante,  in  the  second  para- 
graph, which  the  reader  is  requested  to  correct. 

This  edition  contains  a  modification  of  the  note  to  the  case  of  Van 
Ankin  V.  West/all,  Vol.  I.,  p.  21,  note  (1) ;  and  an  addition  to  the  note 
(a.  a.),  Vol.  L,  p.  88,  denying  the  right  of  a  defendant  to  show  the  imma- 
teriality  of  evidence  charged  by  him  to  be  false.  To  the  same  eftect  is 
note  (1),  Vol.  I.,  p.  99.  The  decision  in  Smith  v.  Ashley,  11  Metcalf,  367, 
that  the  publisher  of  a  newspaper  is  not  liable  for  the  pubhcation  of  an 
article,  the  hbellous  character  of  which  is  unknown  to  him,  is  shown  to  be 
erroneous.  Vol.  II.,  p.  34,  note  (1),  and  in  pages  252  and  258  there  are 
notes  referring  to  the  code  rendering  unnecessary  the  allegation  of  extrinsic 
facts  to  give  point  to  defamatory  words ;  and  to  decisions  holding  it  neces- 
sary to  a  perfect  defense  in  an  action  for  a  libel  to  show  not  only  the  truth 
of  the  allegations,  but  that  the  publication  was  made  Avith  good  motives 
and  hx  justifiable  ends. 

This  edition  relieves  the  profession  from  going  over  the  cases  for  the 
last  ten  years,  and  in  that  respect  at  least  is  preferable  to  the  former. 

New  York,  9  August,  1852. 


INTRODUCTION. 


BY  THE   EDITOR. 


In  consequence  of  reiterated  complaints  during  the 
last  winter,  by  the  conductors  of  numerous  public 
journals,  of  alleged  erroneous  doctrines  held  by  our 
courts  in  respect  to  the  Law  of  Libel,  the  editor  of 
this  edition  of  Mr.  Starkie's  Treatise,  was  induced  to 
look  into  the  matter.  He  soon  became  satisfied  that 
to  obtain  redress  in  the  cases  in  which  the  decisions 
complained  of  had  been  made,  it  was  only  necessary 
that  an  appeal  should  have  been  prosecuted  to  the 
higher  judicial  tribunals,  and  that  the  application  to 
the  Legislature,  proposed  by  the  conductors  of  the 
press,  to  correct  the  supposed  defects  in  the  law,  was 
unnecessary  and  inexpedient.  He  therefore  contrib- 
uted his  mite  to  dissuade  from  legislative  action,  con- 
vinced that  the  rights  of  individuals,  as  well  as  the  lib- 
erty of  the  press,  were  sufficiently  protected  by  the  ex- 
isting law,  correctly  understood  and  wisely  adminis- 
tered. 

In  his  investigations  upon  this  occasion,  the  editor 
was  forcibly  struck  with  the  diversitie  (to  use  the  or- 
thography of  ancient  days,)  in  the  law  of  libel  as  re- 
cognized in  England  and  as  held  here,  notwithstanding 


20  INTRODUCTION. 

Ve,  as  well  as  England,  profess  to  be  governed  by  the 
common  law  ;  and  it  occurred  to  him  that  the  repub- 
lication of  an  approved  treatise  on  the  subject,  accom- 
panied with  notes  inviting  attention  to  the  differences 
alluded  to,  could  not  fail  to  be  interesting  and  instruc- 
tive— and  the  result  is  the  work  now  submitted  to  the 
profession. 

In  England,  giving  the  name  of  the  author  of  an 
oral  slander  at  the  time  of  its  repetition,  is  a  peifect 
defence  to  an  action.  Strange  as  it  may  seem,  it  is 
unquestionable,  that  at  a  period  as  late  as  1S30,  when 
the  last  English  edition  of  Mr.  Starkie's  Treatise  was 
published,  such  was  held  to  be  the  law  in  England. 
So  it  was  held  by  Lord  Ken  yon  in  1796,  by  Lord 
Ellenborough  in  1802,  and  evendown  to  the  present 
day  there  is  no  case  to  be  found  in  the  English  Reports 
overruling  the  former  decisions,  though  in  1829,  Lord 
Chief  Justice  Best  did  enter  a  protestando  against 
the  doctrine.  With  us,  this  doctrine  has  long  since 
been  exploded.     (See  note  [I]  infra,  vol.  I.  p.  340). 

So,  in  England,  suspicions  and  rumours  of  the 
guilt  of  a  party  to  whom  crime  is  imputed,  may  be 
given  in  evidence  in  mitigation  of  damages^  although 
the  action  be  brought  for  the  express  purpose  of  vindi- 
cating the  character  of  the  party  from  the  aspersions 
cast  upon  him,  resting  upon  no  more  solid  basis  than 
suspicion  and  rumour.  Here  this  doctrine  also  has 
long  since  been  repudiated.  If,  indeed,  suspicions 
and  rumours  have  done  their  deadly  work,  and  the 
good  character  of  the  party  against  whom  they  were 
directed  is  destroyed,  our  courts  allow  the  general  had 
character  of  a  plaintiff  in  an  action  of  slander  to  be 
shewn  in  mitigation  of  damages,  but  evidence  of  mere 
rumours  and  suspicions  is  not  permitted.  (See  note 
[1]  infra,  vol.  II.  p.  96.) 


INTRODUCTION.  21 

In  England,  the  doctrine  of  privileged  communica- 
tions is  a  vital  principle  of  the  law  of  slander ;  whilst 
here  it  is  scarcely  known.  In  England,  no  man  is 
punishable  criminally  for  the  publication  of  his  opin- 
ions upon  any  subjects  whatever,  affecting  the  consti- 
tution of  the  country,  its  laws,  or  their  administration, 
or  the  conduct  of  public  functionaries  in  the  discharge 
of  duties  entrusted  to  them,  provided  the  communica- 
tions are  sincere  and  honest  and  not  malicious — the 
character  of  the  publication  to  be  judged  of  by  ^  jury 
and  not  by  the  court.  Nor  is  he  liable  civilly,  in  an 
action  for  damages  for  any  communication  made  by 
him  affecting  the  character  or  the  credit  of  another, 
though  it  he  false  or  erroneous,  provided  it  be  made  on 
an  occasion  in  which  his  own  interests  or  the  interests 
or  the  business,  or  even  the  convenience  of  others  re- 
quire it  to  be  made,  and  that  he  act  in  good  faith, 
without  malice — the  bona  fides  being  presumed,  until 
the  contrary  is  shown  by  proof.  Here  an  action  has 
been  sustained  against  the  chairman  of  a  political  meet- 
ing for  permitting  his  name  to  be  affixed  to  an  address 
to  the  electors  of  the  state,  canvassing  the  conduct, 
qualifications  and  character  of  a  candidate  for  office, 
who  solicited  their  suffrages,  although  the  address  con- 
tained no  charge,  which  if  orally  made  would  have 
been  actionable,  and  no  proof  of  express  or  actual 
malice  was  given  ;  (see  note  [1]  page  194  Vol.  I. 
infra,)  ;  and  so  an  action  has  been  held  to  lie  for 
words  affecting  the  credit  of  a  third  person,  although 
spoken  in  answer  to  an  inquiry,  on  a  subject  in  which 
the  party  making  the  inquiry  had  an  interest,  and  no 
l^roof  oT  express  7nalice  \Y  as  given;  but  on  the  con- 
trary was  rebutted  by  the  circumstances  of  the  case. 
(See  Sewall  v.  Catlin,  3  Wendell  291.) 

In  this   country  but  little  other  effect  is  given  to  the 


22  INTRODUCTION. 

general  issue  in  the  action  of  slander,  than  to  compel 
the  plaintiff  to  prove  the  facts  alleged  in  his  declaration, 
essential  in  law  to  his  right  to  recover  ;  whilst  in  Eng- 
land, the  plea  of  the  general  issue  is  of  such  force,  that 
under  it  the  defendant,  with  the  exception  of  the  defence 
arising  from  a  justification  of  the  charges  made  and 
from  the  protection  afforded  by  the  statute  of  limita- 
tions, may  avail  himself  of  any  defence  existing  to  the 
action.*  He  may  under  it,  prove  that  the  words  were 
not  spoken  or  written  in  the  calumnious  sense  alleged 
in  the  declaration  ;  that  the  occasion  and  circumstan- 
ces of  the  speaking  or  writing  were  such  as  either  abso- 
lutely to  exonerate  him  from  liability  to  an  action  with- 
out regard  to  the  motive  or  intention  with  which  the 
words  were  uttered  or  written  ;  or  conditionally,  that 
is,  provided  it  be  not  proved  that  he  was  actuated  by 
express  or  actual  malice,  as  contra-distinguished  from 
that  malice  which  is  implied  from  the  falsity  of  the 
charge.  In  fine,  as  the  plaintiff  in  an  action  of  slander, 
like  the  plaintiff  in  every  other  action  on  the  case,  must 
depend  on  the  equity  and  justice  of  his  case  for  his  re- 
covery, so  whatever  will  in  equity  and  conscience  pre- 
vent a  recovery,  may,  with  the  exceptions  above  stated, 
he  given  in  evidence  under  the  general  issue,  and 
need  not  be  specially  pleaded.  (See  infra  Vol.  I.  p. 
455,  note  [I]  ;  p.  456,  note  [1]  ;  p.  325,  note  [1]  ;  and 
p.  208,  note  [1].) 

The  plea  of  the  general  issue,  however,  as  before 
observed,  will  not  avail  in  all  cases.  If  the  defendant 
intends  to  give  evidence  of  the  truth  of  the  publication, 

*  Whetlier  to  the  two  defences  ^vhich  must  be  specially  pleaded  to  render  them 
available,  should  not  be  added  a  third,  qucre  1  The  defence  referred  to,  is  that  set 
up  by  a  party  that  the  publication  charged  to  be  libelloas,  is  a  true  and  fair  account 
of  &  judicial  or  parliamehtiry  proceeding.  Whelhur  such  defence  must  be  specially 
pleaded  is  an  unsettled  question.     (See  note  [1]  infra  vol.  I,  p.  456.) 


INTRODUCTION.  2S 

he  must  interpose  a  plea  of  justification.  This  plea 
is  usually  put  in  where  the  defendant  undertakes  to 
prove  the  truth  of  the  charge  of  a  crime  imputed  to 
the  plaintiff,  as  is  manifest  as  well  from  adjudged  cases 
as  from  the  rules  of  pleading,  requiring  the  same  de- 
gree of  certainty  and  precision  in  a  plea  of  justification 
that  is  demanded  in  an  indictment.  This  plea  is  pro- 
per, also,  in  all  cases  where  specific  charges  other 
than  crime  have  been  made,  affecting  the  plaintiff  in 
his  character,  office,  profession  or  business.  Instead, 
however,  of  limiting  its  use  to  cases  in  which  it  may 
properly  be  interposed,  matter  has  been  alleged  in  the 
form  of  a  plea  or  notice  of  justification,  which  is  not 
and  in  the  nature  of  things  cannot  be,  the  subject  of  a 
plea  of  justification,  because  not  presenting  on  its 
face  a  full  and  perfect  answer  to  the  declaration  :  or, 
in  other  words,  shewing  a  bar  to  a  recovery  5  and  the 
consequence  of  this  vicious  mode  of  pleading  and  of 
the  adjudications  of  the  courts  growing  out  of  it,  has 
been  to  involve  the  law  of  libel  as  it  prevails  in  the 
state  of  New- York,  in  such  doubt  and  uncertainty 
that  by  many,  and  especially  those  who  have  suffered 
from  the  errors  of  the  courts,  it  was  supposed  that  the 
only  mode  of  restoring  the  good  old  common  law  was 
by  legislative  interference.  The  evils  alluded  to  hap- 
pen in  this  wise  :  A  defendant  in  an  action  of  slander 
joins  with  the  plea  of  not  guilty  a  notice  of  justification 
setting  forth  certain  facts  and  circumstances  which  ho 
intends  to  offer  in  evidence  on  the  trial  of  the  cause  in 
bar  of  a  recovery.  The  facts  and  circumstances  thus 
stated  may  be  fit  and  proper  to  be  given  in  evidence 
under  the  general  issue,  and  if  not  rebutted  by  proof 
of  express  or  actual  malice,  may  authorize  a  verdict 
for  the  defendant ;  but  on  their  face  enough  is  not  pre- 


24  INTRODUCTION. 

sented  to  raise  a  bar  to  a  recovery.  Again  :  the  de- 
fendant pleads  that  the  publication  alleged  to  be  libel- 
lous is  a  letter  written  by  him  in  answer  to  an  inquiry 
as  to  the  character  of  the  plaintiff  as  a  servant.  This 
would  be  a  good  and  perfect  defence  to  the  action  if 
not  rebutted  by  proof  of  malice  ;  but  the  matter  thus 
set  up  is  not  the  proper  subject  of  a  special  plea,  be- 
cause, to  render  the  plea  a  full  answer  to  the  declara- 
tion, it  would  be  necessary  to  negative  the  existence  of 
malice,  which  cannot  be  done;  for  if  done,  such  aver- 
ment would  render  the  plea  demurrable,  as  it  would 
both  deny  that  which  the  plaintiff  would  be  bound  to 
prove  under  the  general  issue,  and  would  confess  and 
avoid.  Or  the  defendant  sets  forth  in  a  notice  of  justi- 
fication that  the  publication  alleged  to  be  libellous  is  a 
criticism  upon  a  literary  work,  and  that  upon  the  trial 
of  the  cause  he  will  produce  in  evidence  the  work  criti- 
cised by  him,  and  insist  that  the  severity  of  remark 
complained  of  as  libellous  is  fully  warranted  by  the 
nature  of  the  work  reviewed,  or  the  principles  advocat- 
ed by  the  author.  The  facts  thus  stated,  if  proved 
under  the  plea  of  the  general  issue,  might  constitute  a 
good  and  perfect  bar  to  a  recovery,  provided  the  de- 
fendant had  not  exceeded  the  bounds  of  fair  criticism, 
and  had  not  been  actuated  by  malicious  motives  ;  but 
they  vs^ould  not  in  themselves  present  a  bar  to  a  recov- 
ery. When  a  defendant  who  has  interposed  such  plea 
or  notice  offers  at  the  trial  to  verify  the  same  by  proof, 
he  is  met  by  the  objection  that  the  facts  offered  to  be 
proved,  do  not  constitute  a  justification  ;  and  the 
judge  sustains  the  objection,  and  rightly  too.  The 
defendant  then  offers  to  prove  the  truth  of  the  facts  in 
mitigation  of  damages,  and  the  judge  refuses  to  re- 
ceive the  evidence  either  on  the  ground  that  the  de- 


INTRODUCTION.  25 

fcndant    having  pleaded    a  justification  and  failed  to 
verify  his  plea,  is  not  entitled  to  give  evidence  in  miti- 
gation 5  or  that   the  facts  tend  to   establish  the  truth 
of  the   charge,  and   therefore   cannot  be  given  in   evi- 
dence under  the  general    issue.     Thus  the   evidence 
being  rejected  both  in  justification  and  m  mitigation 
the  defendant  is  cast  a  victim  bound  hand  and  foot  on 
the  altar  of  justice,  and  the  jury  hood-winked   and  in 
total  ignorance   of  the  occasion   and  circumstances  of 
the  speaking  of  the  words   or  publishing  of  the  libel, 
are  required  to  pronounce  a  verdict,  at  the  same  time 
being   instructed  that  the  only  questions    for  them  to 
pass  upon  are:   1.  Whether  the  defendant  is  the  author 
or  publisher  of  the  slander,  and  2.  The    amount  of 
damages  to  be  awarded  to  the  plaintiff. 

That  these  are  not  imaginary  cases,  will  be  seen  by 
reference  to  the  adjudications  of  the  courts.      Turrill 
V.  Bolloway,  17  Wendell  426,  was  an  action  for  a  libel. 
The  publication  stated  that   the  plaintiff,  then  a  candi- 
date for  the  office  of  member  of  Congress,  did  about 
1st    March,  1830,  put  his   official    signature   as    first 
judge  <)f  the  county  of  Oswego,  to  a  paper  purporting 
to  be  an  affidavit,  certifying   under  his  hand  that  the 
person  who  signed  it  was  duly  sworn,  when  in  truth  he 
was  not  sworn.     It  further  represented  that  such  paper 
was   intended   and    used    for  the  purpose  of  prevent- 
ing the  re-appointment    of  the   then  collector  of  the 
customs   for  the  port  of  Oswego  ;   that  the  plaintiff 
had  made  himself,   secretly  as  he  supposed,  busy  in 
concerting  measures  to  produce  that    result,  and  con- 
cluded with   an   appeal  to  the  public  in  these  words, 
"  We  leave  the  public  to  judge  under  the  circumstan- 
ces, whether  Judge  Turrill  has  not  committed  a  gross 
violation  of  his  oath  of  office,  for  the  purpose  of  ruining 
Vol.  I.  4 


26  INTRODUCTION. 

a  man  whom  he  has  long  endeavored  to  inj  ure,  al- 
though he  belongs  to  the  same  political  party  with 
himself?"  The  defendant  pleaded  the  general  issue, 
and  accompanied  the  plea  with  a  notice,  that  on  the 
trial  of  the  cause,  he  would  prove  that  the  plaintiff  did 
affix  his  official  signature  as  first  judge  of  the  county 
courts  of  Oswego,  to  a  statement  in  writing  purporting 
to  be  an  affidavit,  made  by  one  Matthew  McNair,  cer- 
tifying that  NcNair  had  been  duly  sworn  to  the  truth 
of  the  facts  set  forth  in  the  statement,  when  in  fact  he 
had  not  been  sworn  ;  that  the  statement  was  intended 
and  used  for  the  purpose  of  preventing  the  re-appoint- 
ment of  John  Grant,  jun.,  then  collector  of  the  cus- 
toms of  the  port  of  Oswego  ;  that  the  plaintilT  at  the 
time  of  so  affixing  his  signature,  and  before  and  since 
made  himself  secretly  busy  in  concerting  measures  to 
prevent  the  re-appointment  of  Grant,  and  had  for  a 
long  time  endeavored  to  injure  Grant,  although  he  be- 
longed to  the  same  political  party  with  himself  That 
the  plaintiff  at  the  time,  &c.  was  a  candidate  for  the 
office  of  a  member  of  congress,  and  that  the  publica- 
tion was  made  to  inform  the  electors  of  the  congres- 
sional district  of  the  facts  detailed  therein  ;  and  that 
all  the  matters  alleged  in  the  declaration  to  be  libel- 
lous, were  true.  The  issue  thus  joined  was  brought 
to  trial,  and  the  defendant  proved  that  a  paper  in  the 
form  of  an  affidavit  was  drawn  up  about  1st  March, 
1830,  relating  to  some  smuggling  transaction  which 
ought  not  to  have  escaped  the  vigilance  of  the  collector 
of  the  customs  at  Oswego  ;  that  McNair  named  in  the 
paper  as  the  deponent,  showed  it  to  the  plaintiff  who 
told  him  to  sign  it,  which  he  did,  and  the  plaintiff  then 
put  the  jurat  to  it,  and  signed  it  officially  as  sworn 
to,  although  no  oath  was  administered  to  McNair  ; 


INTRODUCTION.  27 

and  that  the  paper  thus  certified,  was  forwarded  to 
Washington  to  be  used  in  preventing  the  re-appoint- 
ment of  the  collector.  The  circuit  Judge  instructed 
the  jury  that  if  the  publication  only  charged  the  plain- 
tiff with  inadver^tence  or  mistake^  he  would  not  be  en- 
titled to  recover  5  but  if  it  charged  official  corruption^ 
the  defendant  was  bound  to  prove  the  plaintiff  guilty 
of  corruption,  and  proof  of  mistake  or  inadvenence, 
would  in  such  case,  be  no  justification.  The  jury 
found  for  the  defendant^  and  a  new  trial  was  ordered 
by  the  Supreme  Court,  on  the  ground  that  the  charge 
to  the  jury  was  erroneous.  The  judgment  of  the  court 
was  pronounced  byBnoNSON  J.  who  pronounced  the 
publication  to  be  libellous,  and  said  the  judge  should 
have  so  instructed  the  jury,  and  that  there  was  no 
ground  for  leaving  the  question  to  the  jury  as  one  of 
mere  mistake  or  inadvertence.  The  cause  was  tried  a 
second  time  before  the  Hon.  Philo  Gridley  one  of 
the  circuit  judges.  After  proof  of  publication,  the  de- 
fendant offered  to  verify  the  facts  and  circumstances 
specified  in  the  notice  subjoined  to  the  plea  ;  to  the  ad- 
mission of  which  evidence  the  plaintiff  objected,  on 
the  ground  of  the  insufficiency  of  the  notice,  and  that 
the  facts  stated  in  it  did  not  amount  to  a  justification 
of  the  charge  ;  which  objection  was  sustained  by  the 
circuit  judge,  and  the  evidence  rejected.  The  judge 
thereupon  instructed  the  jury  that  the  publication 
amounted  to  an  unequivocal  charge  of  official  corrup- 
tion ;  that  the  Supreme  Court  had  determined  the 
paper  to  be  libellous  in  its  character,  and  it  would  be 
their  duty  so  to  consider  it  ;  that  the  only  other  jioint 
necessary  to  be  considered,  was  whether  the  defendant 
had  been  guilty  of  publishing  the  libel,  and  after  some 
remarks  on  the  subject  of  damages,  submitted  the  case 


28  INTRODUCTION. 

to  the  jury,  who  found  a  verdict  for  the  plaintiff  with 
f  SCO  damages.  The  defendant  now  asked  for  a  new 
trial,  which  was  denied,  the  court  holding  that  the 
notice  did  not  amount  to  a  justification,  and  that  the 
cause  had  been  tried  in  conformity  to  the  principles 
laid  down  on  the  former  motion.  See  2o  Wendell,  3S3 
to  3S7.  This  case  fully  illustrates  the  consequences 
resulting  from  this  vicious  mode  of  pleading,  and  the 
adjudications  of  the  courts  growing  out  of  it.  The  de- 
fendant published  a  hand-bill  in  reference  to  the  con- 
duct of  the  plaintiff,  then  a  candidate  for  an  elective 
office,  stating  certain  facts  and  appealing  to  the  public 
to  judge  under  the  circumstances,  whether  the  plain- 
tiff had  not  committed  a  gross  violation  of  his  oath  of 
office.  If  the  facts  were  as  slated  in  the  publication, 
the  defendant  had  an  unquestionable  right  to  publish 
them,  for  no  man  is  liable  in  a  civil  action  for  speaking 
or  printing  the  truth.  (See  infra,  vol.  I.  p.  235,  note 
[1]  ;  p,  233,  note  [1].)  The  only  question  was  as  to 
that  portion  of  the  publication  in  which  the  appeal  is 
made.  On  the  part  of  the  plaintiff  it  might  have  been 
said  that  it  was  equivalent  to  a  distinct  and  substantive 
charge  of  official  misconduct ;  whilst  on  the  part  of 
the  defendant  it  might  have  been  insisted  that  the  ap- 
peal was  a  mere  inference  from  or  commentary  upon 
the  facts  before  stated,  and  whether  the  one  or  the 
other,  was  a  proper  question  to  submit  to  the  jury. 
These,  it  will  be  perceived,  were  questions  of  fact  to 
be  determined  by  the  jury,  and  not  questions  of  law, 
to  be  decided  by  the  court  ;  and  to  enable  the  jury  to 
pass  upon  them  understandingly,  it  was  indispensable 
that  they  should  know  the  facts  of  the  case  5  that  they 
should  know  whether  the  plaintiff  did  affix  a  jurat  to 
a  paper  purporting  to  be  an  affidavit  not  sworn  to  ;  the 


INTRODUCTION.  29 

use  to  which  the  pretended  affidavit  was  put  ;  and  the 
state  of  feeling  of  tlie  plaintiff  towards  the  defendant, 
whether  inimical  or  otherwise.  Without  such  evidence 
the  jury  could  not  pass  upon  the  questions,  and  there- 
fore every  principle  of  justice  demanded  that  the  de- 
fendant should  have  the  benefit  of  the  testimony.  How, 
then,  were  the  facts,  to  be  brought  before  the  jury  ? 
They  could  not  be  set  up  in  bar  in  a  plea  or  notice  of 
justification,  for  they  did  not  in  themselves  constitute 
a  bar  5  they  merely  presented  a  case  which  might  or 
might  not  be  pronounced  a  good  defence  by  a  jury  ; 
and  the  only  mode  of  bringing  the  evidence  to  the 
knowledge  of  the  jury  was  to  adduce  it  under  the  gen- 
eral issue.  The  Judge,  therefore,  rightly  decided  that 
the  facts  set  forth  in  the  notice  did  not  amount  to  a 
justification  ;  but  he  should  have  received  tlie  evidence 
so  as  to  enable  the  jury  to  pass  upon  the  question 
whether  the  defendant  was  warranted  in  making  the 
appeal  to  the  public,  which  had  been  made  by  him  to 
determine  under  the  circumstances  of  the  case,  whether 
the  plaintiff  had  not  been  guilty  of  a  violation  of  his 
oath  of  office.  And  in  case  they  should  find  against 
the  defendant  upon  that  question,  then  to  give  such 
consideration  to  the  testimony  as  in  their  judgment  it 
was  entitled  to,  in  assessing  the  damages  to  be  award- 
ed to  the  plaintiff.  In  cither  point  of  view  the  testi- 
mony was  most  important  (see  infra  vol.  I.  p.  314, 
note  [S]  ;  and  yet  it  was  wholly  excluded.  The  judg- 
ment of  the  supreme  court  in  this  case  was  reversed  in 
the  court  for  the  correction  of  errors.  See  26  Wen- 
dell 383.  No  resolution  was  adopted  expressing  the 
grounds  of  the  reversal  ;  but  from  the  opinions  deliv- 
ered, it  is  presumable  that  the  judgment  was  reversed, 
because  the  case  had  not  been  so  submitted  as  to  en- 


30  INTRODUCTION. 

able  the  jury  instead  of  the  court,  to  pass  upon  the 
question  of  the  defendant's  liabihty. 

The  case  of  Cooper  v.  Barber,  24  Wendell  105,  was 
an  action  for  a  libel  alleged  to  have  been  published  by 
the  defendant,  the  editor  of  a  newspaper  called  the 
Otsego  Republican.  The  libel  commences  in  these 
words  :  "  From  the  Chenango  Telegraph,  J. 
Fenimore  Cooper.  This  gentleman  (meaning  the  said 
plaintiff,)  not  satisfied  with  having  drawn  down  upon 
his  head  universal  contempt  from  abroad,  (meaning 
Europe,)  has  done  the  same  thing  for  himself  at 
Cooperstovvn,  where  he  resides  ;"  and  then  proceeds 
to  give  an  account  of  a  controversy,  which  had  arisen 
between  the  plaintiff  and  certain  citizens  of  Coopers- 
town,  relative  to  a  tongue  of  land  projecting  into  Ot- 
sego Lake,  called  Th^ee  Mile  Point :  stating  in  sub- 
stance that  the  citizens  of  Cooperstown  had  always 
been  in  the  habit  of  visiting  the  point  during  the  sum- 
mer months  for  recreation  and  pleasure  ;  and  that  lat- 
terly the  plaintiff  had  forbidden  resort  to  it  under  pain 
of  prosecution  ;  that  the  citizens  had  a  meeting  ;  that 
speeches  were  made  and  resolutions  passed  that  they 
would  continue  to  visit  the  point,  and  bidding  defiance 
to  the  plaintiff.  Then  followed  comments,  not  of  a 
very  courteous  character,  but  still  not  so  offensive  as 
to  induce  the  plaintiff  to  make  them  a  particular  sub- 
ject of  complaint  in  the  points  presented  on  the  argu- 
ment of  the  case  ;  the  principal  grievance  pointed  out 
being  the  first  paragraph,  referring  to  his  character 
abroad.  Then  succeeded  the  remarks  of  the  defend- 
ant, setting  forth  the  grounds  of  the  claim  of  the  vil- 
lagers, to  visit  the  point,  containing  nothing  libellous, 
unless  a  professed  desire  to  prevent  '  a  universal  preju- 
dice which   appeared   to  be  springing  up  against  the 


INTRODUCTION.  31 

plaintiff/  may  be  deemed  ironical,  and  therefore  slan- 
derous. The  defendant  pleaded  the  general  issue,  and 
subjoined  a  notice  that  on  the  trial  of  the  cause,  he 
would  prove  {inter  alia)  that  the  inhabitants  of  Coop- 
erstown  had,  for  a  number  of  years,  been  in  the  habit 
of  visiting  the  point  for  recreation  and  pleasure  with- 
out objection,  until  the  appearance  of  the  plaintiff's 
notice  forbidding  them  to  do  so  ;  that  they  had  erected 
a  house  on  the  point,  and  taken  care  of  it  and  of 
the  trees  and  shrubbery,  and  were  in  the  daily  occu- 
pation of  it  with  the  knowledge  and  consent  of  the 
owners  ;  that  it  was  generally  understood  that  the 
father  of  the  plaintiff,  former  owner  of  the  point,  gave 
permission  to  the  inhabitants  to  use,  occupy  and  enjoy 
it,  and  that  it  was  his  intention,  and  of  those  claiming 
title  under  him,  except  the  plaintiff,  that  they  should 
continue  to  do  so  without  molestation.  After  proof 
of  the  publication,  the  judge  remarked  that  he  was 
satisfied  that  the  matters  set  forth  in  the  defendant's 
notice  did  not  amount  to  a  justification ^  and  that  they 
were  irrelevant ;  and  that  he  would,  without  waiting 
for  an  application  for  that  purpose,  exclude  evidence  of 
those  matters.  The  defendant's  counsel  then  offered 
to  prove  the  facts  set  forth  in  the  notice  in  mitigation 
of  damages,  but  the  judge  decided  that  the  evidence 
was  inadmissible  for  that  purpose  also.  Subsequently 
the  defendant  by  his  counsel,  offered  to  prove  that 
every  fact  stated  by  him  in  his  comments  was  true  5 
but  the  judge  refused  to  receive  the  testimony.  The 
jury  found  for  the  plaintiff  with  $400  damages.  The 
defendant  applied  for  a  new  trial,  which  was  refused, 
Bronson,  J.  who  delivered  the  judgment  of  the  court, 
concurred  with  the  Circuit  Judge  that  the  facts  set 
forth  in  the  notice  did  not  amount  to  a  justification^ 


S2  INTRODUCTION. 

and  held  that  evidence  of  such  facts  was  inadmissible 
as  a  bar  to  the  action,  because  the  justification  was 
not  so  broad  as  the  imputation  upon  the  plaintiff's 
character  ;  and  was  not  proper  evidence  in  mitigation 
of  damages,  for  the  reason  that  so  far  as  it  went,  it 
tended  to  prove  the  charge  well  founded.  Here  again 
it  will  be  observed  that  the  defendant  attempted  to 
plead  in  bar  of  a  recovery,  matter  which  was  not  the 
subject  of  a  plea  of  justification,  indeed  had  no  pre- 
tence to  it,  and  yet,  it  was  solemnly  decided  because 
the  justification  (as  it  was  called,)  was  not  so  broad 
as  the  imputation  upon  the  plaintiff's  character,  the 
evidence  was  inadmissible  ;  and  it  was  also  held  that 
the  evidence  was  not  proper  in  mitigation,  for  the 
reason  that  so  far  as  it  went,  it  tended  to  prove  the 
charge  well  founded  ;  although  it  had  been  decided 
that  the  facts  set  forth  in  the  notice  did  not  amount  to 
a  justification — and  therefore  there  could  be  no  danger 
of  the  jury  being  improperly  influenced  and  induced  to 
render  a  verdict  for  the  defendant,  who  admitted  that 
there  must  be  a  verdict  against  him,  and  only  asked 
that  the  occasion  and  circumstances  under  which  the 
publication  was  made,  might  be  taken  into  consider- 
ation in  mitigation  of  damages.  If  the  views  which 
have  already  been  advanced  in  reference  to  the  ques- 
tions proper  to  be  submitted  to  a  jury  in  actions  for 
libels  founded  on  publications  of  this  character  be  cor- 
rect, instead  of  the  disposition  which  was  made  of  this 
case,  a  new  trial  would  have  been  granted,  with  direc- 
tions that  the  evidence  offered  should  be  received,  so 
that  the  question  might  be  submitted  to  the  jury, 
whether  the  comments  of  the  editor  of  the  Telegraph 
republished  by  the  defendant,  were  or  were  not  war- 
ranted by  the  facts  of  the  case  ;  and  if  they  should 


INTRODUCTION.  33 

find  that  they  were  unauthorized,  then  that  the  facts 
mif^ht  be  taken  into  consideration  in  assessing  the  dam- 
ages to  be  paid  by  the  defendant  ;  for  it  might  have 
happened,  had  the -facts  been  given  in  evidence,  that 
the  jury  would  not  have  felt  it  their  duty  to  render  a 
verdict  of  $400  in  favor  of  the  plaintiff. 

A  third  case  illustrating  the  injurious   consequences 
of  this  vicious  mode  of  pleading,  and  of  the  erroneous 
decisions  growing  out  of  it,  is  that  of  Cooper  v.  Weed, 
Hoffman  and    White,  tried   at   the   Otsego  Circuit  in 
September,  1842,  before  the  Hon.  Philo  Gridley,  one 
of  the  circuit  judges  (MSS.)     This   was  an  action  for 
two  separate  libels,  published  in  the  Evening  Journal, 
a  newspaper  printed  in  Albany,  of  which   Weed  was 
the  editor,  and  the   other  defendants,  were  the  propri- 
etors.    They  were  republications  :  the  first  of  an  arti- 
cle from  a  public  journal  called  "The  New  World," 
and  the  second  of  an  article  from  "  The  Buffalo  Com- 
mercial Advertiser."     The  first  article  spoke  of  a   li- 
bel suit  prosecuted  by  Cooper  against  Weed  in  which 
an  inquest  by   default  had  been  taken,  the  defendant 
not   appearing  at   the   trial,   and   the  damages  of  the 
plaintiff  being  assessed  at  $400.     It  wns   said  that  the 
cause  of  the  non-appearance  of  the  defendant  at  the 
trial  was  the  serious  indisposition  of  his  wife,  and  the 
the  dangerous  illness  of  his  daughter  ;  that  the  fact  of 
the  sickness  of  his  family  was  stated  to  the  judge,  who 
refused  to  interfere,  and  that  then  an  appeal  was  made 
to  the  plaintiff,  by  the  counsel  of  the  defendant,  "  but," 
it  was  said,  "  he  might  as   well  have  appealed  to  the 
reddest  of  the  great  novelist's  Indians,  when  the   war 
paint  was   on   him,  and  the   scalps   of  the  pale   faces 
hung  reeking   at   his  belt."     The  second  article  was 
headed  "  J.  Fenimore  Cooper,"  and  commences  thus  : 
Vol.  I.  6 


84  INTRODUCTION, 

"  We  have  never  joined  in  the  cry  against  this  gentle- 
man. He  has  written  some  very  foolish  things  ;  has 
shown  bad  temper  and  worse  taste  ;  has  made  himself 
ridiculous  by  setting  up  as  the  arbiter  of  the  conven- 
tionalities of  social  life  ;  more  than  all,  has  been  guilty 
of  the  folly  of  decrying  and  defying  the  whole  news- 
paper press  of  the  country,  and  prosecuting  sundry 
prominent  gentlemen  connected  with  it  for  the  ofTcnco 
of  severely  criticising  some  of  his  late  literary  produc- 
tions." Another  paragraph  in  this  article  was  in  these 
words  :  "  But  the  worst  enemy  of  Mr.  Cooper  could 
not  wish  him  in  a  more  discreditable  position  than  the 
one  in  which  he  is  now  placed  by  his  own  act,  if  the 
following  from  the  Courier  and  Enquirer  is  true : 
*'  Mr.  C  has  exhibited  a  want  of  manhood  and  feeling 
alike  disgraceful  to  him  as  a  man  and  gentleman!" 
The  defendants  pleaded  the  general  issue  and  subjoined 
to  it  a  notice  of  justification^  setting  forth  matter 
which  they  would  prove  on  the  trial,  and  insist  upon 
in  bar  of  a  recovery :  As  to  the  first  libel,  that  they 
would  prove  that  at  the  time  the  inquest  was  taken, 
the  wife  of  Mr.  Weed  was  sick  and  his  daughter  dan- 
gerously ill,  and  that  on  that  account  he  did  not  attend 
and  defend  the  cause  ;  that  the  reason  of  his  absence 
was  stated  to  the  circuit  judge,  and  he  declining  to  in- 
terfere an  appeal  was  made  to  the  humanity  of  the 
plaintiff  to  whom  the  facts  were  stated,  but  that  he 
refused  to  allow  the  cause  to  be  delayed,  and  took  an 
inquest  by  default.  As  to  the  second  libel,  the  de- 
fendants gave  notice  that  they  would  prove  that  the 
plaintiff  wrote  and  published  a  book  entitled  "  Homo 
as  Found,"  in  and  by  which  he  had  shown  bad  temper 
and  worse  taste  ;  had  made  himself  ridiculous  by  set- 
ting up  as  the  arbiter  of  the  conventionalities  of  social 


INTRODUCTION.  36 

life,  and  had  been  guilty  of  the  folly  of  decrying  the 
whole  newspaper  press  of  the  country  ;  that  he  had 
prosecuted  two  individuals,  viz  :  James  Watson  Webb 
and  Thurlow  Weed,  prominent  men  connected  with 
the  newspaper  press  of  the  country,  for  the  ofience  of 
too  severely  criticismg  some  of  his  late  literary  pro- 
ductions, to  wit,  "Home  as  Found,"  and  had  caused 
one  of  them  to  be  indicted  for  the  same  supposed 
offence  ;  that  the  matters  intended  to  be  proved  in 
justification  of  the  first  libel  would  also  be  given  in 
evidence  in  justification  of  the  second,  and  thus  it 
would  be  insisted  that  the  plaintiff  had  placed  himself 
in  a  position  as  discreditable  as  his  worst  enemy  could 
wish.  On  the  trial  of  the  cause,  after  proof  of  publi- 
cation of  the  alleged  libels,  the  defendants  offered  evi- 
dence to  verify  the  facts  set  forth  in  the  notice  of  justi- 
fication as  to  the  libel  contained  in  the  first  count  of 
the  declaration,  which  evidence  was  objected  to  as  in- 
admissible by  the  counsel  for  the  plaintiff,  on  the 
ground  that  it  would  not,  if  admitted,  amount  to  a  jus- 
tification of  the  libel ;  the  counsel  insisting  that  the 
concluding  sentence  of  the  first  hbel  was  a  distinct  and 
substantive  charge  of  inhumanity.  The  counsel  for 
the  defendants  contended  that  the  paragraph  alluded 
to  was  a  mere  inference  from,  or  commentary  upon 
the  facts  before  stated,  and  that  it  was  the  province  of 
the  jury  to  determine  whether  it  was  the  one  or  the 
other,  and  that  if  they  should  come  to  the  conclusion 
that  it  was  a  mere  inference  or  commentary,  then  to 
say  whether  it  was  or  was  not  nfair  inference  or  com- 
mentary. The  judge  decided  the  publication  to  be 
libellous,  and  held  the  evidence  inadmissible,  inasmuch 
as  the  facts  offered  to  be  proved  did  not  of  themselves, 
and  without   any  additional   or   explanatory  facts,  con- 


36  INTRODUCTION. 

stitiite  a  justification  of  the  libel  upon  any  construc- 
tion of  which  it  was  susceptible.  Ho  observed  that 
he  thought  that  upon  a  true  reading  of  the  libel,  it  as- 
serted that  the  appeal  to  Mr.  Cooper  for  a  postpone- 
ment of  the  trial,  was  unsuccessful  because  he  was  a 
man  of  great  inhumanity,  &.C.,  thus  assigning  his  in- 
humanity as  the  cause  of  his  refusal  to  postpone  the 
trial  ;  but  if  the  true  construction  was  that  the  appeal 
to  Mr.  Cooper  was  unsuccessful,  and  therefore  he  was 
a  man  of  great  inhumanity  of  disposition,  &c.j  thus 
making  the  charge  an  inference  from  or  commentary 
upon  the  facts  stated,  it  was  still  necessary  to  plead 
and  prove  such  a  state  of  facts  as  would  justify  the 
charge,  for  if  the  commentary  was  unfair  and  not 
warranted  by  the  facts,  and  was  libellous  in  its  cha- 
racter, it  became  the  foundation  of  an  action  of  itself, 
and  required  a  justification  as  broad  as  the  charge; 
and  that  applying  that  rule  to  the  case  at  bar,  the  facts 
stated  in  the  notice  and  offered  to  be  proved  without 
an  explanation  why  an  affidavit  was  not  produced  to 
show  the  sickness  of  Mr.  AVeed's  family,  or  of  any 
other  facts  whatever,  clearly  fell  short  of  justifying  the 
grave  charge  contained  in  the  libel.  The  counsel  for 
the  defendants  next  offered  to  prove  the  truth  of  the 
charges  made  in  the  publication  set  forth  in  the  second 
count,  and  accordingly  produced  the  book  entitled 
"  Home  as  Found,"  of  which  the  plaintiff  acknow- 
ledged himself  to  be  the  author,  and  offered  to  read 
certain  portions  of  it  in  proof  of  such  charges,  which 
the  judge  would  not  permit,  on  the  ground  that  the 
notice  was  insufficient  in  not  specifying  the  particular 
portions  of  the  work  relied  on  to  justify  the  several 
and  distinct  charges  attempted  to  be  justified,  and  that 
a  general  reference  to  a  book  of  500  pages  was   not 


INTRODUCTION.  S7 

enough  for  such  purpose.  When  the  evidence  was 
closed  the  counsel  for  the  defendant  proposed  to  ar^ue 
to  the  jury  the  question  whether  tlie  concluding  para- 
graph of  the  publication  set  forth  in  the  first  count  of 
the  declaration,  was  a  distinct  charge  of  inhumanity, 
or  a  mere  inference  from  or  commentary  upon  the  facts 
before  staled  5  but  the  judge  ruled  that  he  would  not 
allow  it  to  be  argued  to  the  jury,  that  the  publication 
srt  forth  in  the  first  count  of  the  declaration  was  not 
libellous  ;  that  it  was  to  be  taken  as  settled  for  the 
purposes  of  that  trial,  that  ihe  publication  lo as  libel- 
lous, and  that  there  was  no  justification.  He  how- 
ever told  the  counsel  that  the  attention  of  the  jury 
might  bo  called  to  any  mitigating  circumstances  ap- 
pearing on  the  face  of  the  publication.  The  judge 
then,  after  the  cause  had  been  summed  up  by  counsel, 
charged  the  jury  that  it  had  been  decided  by  the  court 
that  the  action  was  sustained,  and  that  ihe  libel  ivas 
not  justified  ;  and  that  the  only  question  for  them  to 
pass  upon  was  the  amount  of  damages,  and  that  in  mak- 
ing up  their  opinions  in  that  respect,  they  should  re- 
gard the  facts  legally  before  them  as  evidence  and 
none  other.  The  jury  found  a  verdict  for  the  plaintiff 
with  $200  damages. 

Hero  again  are  seen  the  pernicious  consequences  of 
an  attempt  to  present  in  a  plea  or  notice  of  justification 
matter  of  defence  not  the  subject  of  a  plea  of  justifica- 
tion. Matter  constituting  the  proper  subject  of  such  a 
plea  must  on  its  face,  be  a  complete  and  perfect  bar  to 
a  recovery.  Now  it  is  palpable  that  neither  branch  of 
the  notice  of  justification  in  this  case  presents  a  bar. 
As  to  the  first  libel,  tlie  defendants  insist  that  they 
had  a  lawful  right  to  charge  the  plaintiff  with  inhu- 
manity under  the  existing  circumstances  :   Mr.  Weed's 


38  INTRODUCTION. 

wife  was  sick,  and  his  daughter  dangerously  ill,  and 
he  could  not  tear  himself  from   his   attendance   upon 
them,  and  proceed  to   the  circuit  to   make  his  defence. 
His    counsel   appealed    to    the  plaintiff  to  permit  the 
cause  to   pass  ;  but  he  inhumanly  refused.     It  is  not 
alleged  that  the  plaintiff  knew,  or  that  proof  was  offer- 
ed to  him,  that  the   representations  as  to  the  sickness 
in  Mr.  Weed's  family   were  true  ;    and  without  such 
fact  brought  home  to  his  knowledge,  there  was  no  pre- 
tence for  the  charge  of  inhumanity,  as  it  is  called,  for 
it  is  not   usual  for  parties   conducting   angry   suits  of 
this  nature,  to   subject  themselves  to   much   inconve- 
nience   for   the    accommodation    of  their  adversaries, 
upon  a  mere  suggestion  of  sickness   in  the   family  of 
one  or  the  other.     Had  it  however  been  alleged  in  the 
notice,  that  due  proof  of  the  sickness  in  Mr.  Weed's 
family  had  been  presented  at  the  time  when  a  postpone- 
ment of  the  trial  was  asked,  still  enough  would  not  have 
been  averred  to  have  authorized  the  judge  to  pronounce 
the  facts  sufficient   to   constitute  a  justification.      The 
matter  set  forth  in  the  notice  proved  under  the  general 
issue  might   have  authorized  the  defendants  to  demand 
that  the   question    should    be    submitted  to    the  jury 
whether  the  paragraph  complained  of  as  libellous  was 
or  was  not  a  fair  inference  from,  or  commentary  upon 
the  facts  before  stated  ;    but  they   could  not   contend 
with    any  show    of  reason    that  the   facts  themselves 
amounted    to    a  justification.     Had  the  circuit  judge 
therefore  decided  that  the  defence  set  up  was  not  the 
subject  of  a  plea  or  notice  of  justification,  his   decision 
would  have  been  right  ;  but  unfortunately  in  this  case, 
as  in  the  cases  before   cited,  and  others  that  might  be 
specified,  it  was  held  that  the  defence  set  up  was  the 
proper   subject    of  a   plea    of  justification,    but  that 


INTRODUCTION.  8® 

enough  was  not  averred  to  establish  a  justification  ; 
the  judge  intimating  what   he   subsequently  more  fully 
expressed,  that  the  making  of  an  affidavit  of  the  sick- 
ness of  Mr.  Weed's  family,  and  the  presentment  of  the 
same  to  the  plaintiff  should  have  been   averred   in  the 
notice— whereas  had  those  facts  been  averred,  the  no- 
tice still  would  have  fallen   short  of  shewing  a  case  of 
justification.   But  though  the  facts  offered  to  be  proved 
did  not  amount  to  a  justification,  they  were  admissible 
in  evidence   under  the  general  issue,  and  the  defend- 
ants  should   have  been   permitted   to  prove  them,  to 
show  the  occasion  and  circumstances  under  which  the 
last  paragraph  in  the  first  alleged  libel  was  written.  It 
may  well  be  douf)ted  whether  that  paragraph  contain 
any  thing  that  is  libellous  ;   there  is  in  it  no  accusation 
of  crime  ;   and  in  connection  with  the  facts  upon  which 
it  is  based,  there  is  nothing  which  can  have  the  slight- 
est  tendency   to   expose  the  plaintiff  to   hatred,  con- 
tempt and  vrnominy,  the  gravamen  alleged  in  the  de- 
claration ;   but  admitting  it  to  be  libellous,  the  evidence 
should  have  been  received  to   enable  the  jury  to  pass 
upon  the  question  raised  by  the  plaintiff's  counsel,  viz : 
whether  the  paragraph  constituted   a  distinct  and  sub- 
stantive charge,  or  was  a  mere  inference  from,  or  com- 
mentary upon  the  facts  before  stated.     If  they  found 
it  to  be  an   inference  or  commentary,  then  to   decide 
whether  it  was  a  fair  inference  or  commentary  ;   and  if 
they  found  it  to   be  a  distinct   and  substantive  charge, 
o"  that  the  inference  was  unfair,  then  to  give  such  con- 
sideration  to  the  testimony  in  the  assessment  of  dam- 
ages, as  it  was  entitled  to.      Instead,  however,  of  re- 
ceiving the  evidence,  and  thus   submitting   the  case  to 
the  jury,  the  judge  himself  decided  that  the  paragraph 
contained  a  distinct   and  substantive  charge  of  inhu^ 


40      '  INTRODUCTION. 

manity  ;  that  the  facts  offered  to  be  proved  fell  short 
of  establishing  a  justification  ;  that  he  would  not  per- 
mit the  defendant's  counsel  to  address  the  jury  on  the 
question,  whether  the  paragraph  amounted  to  a  sub- 
stantive charge,  or  a  mere  inference  from  preceding 
facts  ;  and  finally  told  the  jury  that  it  had  been  decid- 
ed by  the  court  that  the  action  ivas  sustained,  that  the 
libel  ivas  not  justified,  and  that  the  only  question  for 
them  to  pass  upon  was  the  amount  of  damages.  It  is 
worthy  of  remark  that  the  principle  insisted  upon  here 
as  applicable  to  actions  of  slander  of  this  character, 
brought  for  the  publication  of  matter  which  may  or 
may  not  be  libellous,  according  to  the  finding  of  a  jury 
upon  a  previous  question  of  fact,  presented  itself  in  a 
shadowy  form  on  the  trial  of  this  cause  to  the  mental 
vision  of  the  learned  judge,  but  not  with  its  conse- 
quences so  fully  developed  as  to  induce  him  to  adopt 
it  as  the  rule  to  govern  the  case. 

The  ruling  of  the  judge  in  reference  to  the  evidence 
offered  to  prove  the  second  branch  of  the  notice  of  jus- 
tification, also  requires  some  notice.  "  Home  as 
Found,"  a  book  written  and  published  by  the  plaintiff, 
was  offered  in  evidence  to  prove  that  the  plaintiff  had 
written  a  great  many  foolish  things;  had  shown  bad 
temper  and  worse  taste  ;  had  made  himself  ridiculous 
by  setting  up  as  the  arbiter  of  the  conventionalities  of 
social  life,  and  had  defied  and  decried  the  whole  news- 
paper press.  The  book  was  rejected  by  the  judge  on 
the  ground  that  the  notice  was  insufficient,  in  not  spe- 
cifying the  particular  portions  of  the  work  relied  on  to 
justify  the  several  and  distinct  charges  made  in  the 
publication,  and  that  a  general  reference  to  a  book  of 
five  hundred  pages  was  not  enough.  Here,  again,  it 
will  be  observed  that  the  defence  attempted  to  be  es- 


INTRODUCTION.  41 

tablished  was  viewed  by  the  judge  as  matter  of  justi- 
fication ;  and  because  the  notice  of  justification  was 
not  sufficiently  definite,  or  in  other  words,  liad  not  that 
precision  and  certainty  required  in  a  plea  or  notice  of 
justification,  the  evidence  offered  was  rejected.  Here, 
also,  had  the  judge  held  that  the  defence  set  up  was 
not  the  subject  of  a  plea  of  justification,  he  would 
have  decided  correctly  ;  but  instead  of  doing  so,  he 
held  as  he  had  done  in  relation  to  the  first  branch  of 
the  notice,  that  it  was  the  proper  subject  of  a  plea  of 
justification,  but  that  enough  had  not  been  averred  to 
make  out  a  case  of  justification.  Had  the  specifica- 
tions of  the  portions  of  the  work  relied  upon  as  author- 
izing the  charges  made  against  the  plaintiff,  been  ever 
so  precise  and  certain,  the  judge  would  still  have  been 
right  in  holding  that  the  notice  did  not  on  its  face  raise 
a  bar  lo  a  recovery,  as  it  would  not  show  a  case  of 
justification  ;  but  he  erred  in  refusing  to  admit  the  tes- 
timony, as  the  defendants  had  the  right  to  insist  that 
the  publication  alleged  to  be  libellous  was  a  fciir  criti- 
cism upon  '*  Home  as  Found,"  and  that  the  question 
whether  it  was  so  or  not,  should  be  submitted  to  a 

It  sometimes  happens  that  a  publication  alleged  to 
be  a  criticism  upon  a  literary  production,  is  in  fact  a 
personal  and  defamatory  attack  upon  the  author  as  a 
man,  and  not  upon  the  author  as  connected  with  the 
work  assumed  to  be  criticised  ;  in  such  case,  the  critic 
loses  the  protection  which  he  would  otherwise  enjoy  ; 
but  whether  he  has  abused  the  privilege  of  a  critic  is  a 
question  of  fact  to  be  determined  by  a  jury,  and  not  a 
question  of  law  to  be  decided  by  the  court.  Where 
a  defendant,  regardless  of  the  rule  which  Sir  Edward 
Coke,  in   his  reports  termed   '  an  excellent   point  of 

Vol.  I.  G 


42  INTRODUCTION. 

learning  in  actions  of  slander,'  "  not  to  demur  although 
your  opinion  is  that  the  plaintiff  has  no  cause  of  action, 
but  first  take  advantage  of  matters  of  fact,  and  leave 
matters  of  law  which  always  arise  upon  the  matters  of 
fact,  ad  iiltimum,'*  interposes  a  demurrer  in  an  action 
of  slander,  as  was  done  in  the  case  of  Cooper  v.  Stone, 
24  Wendell,  434;  the  court  may  legitimately  say 
whether  the  matter  alleged  to  be  libellous  is  or  is  not 
the  subject  of  an  action ;  but  when  the  party  puts  him- 
self upon  the  country,  even  that  case  admits  that  the 
question  whether  a  publication  be  or  be  not  a  fair  crit- 
icism can  be  settled  only  by  a  jury.''  In  the  case  of 
Cooper  V.  Weed  and  others,  the  defendants  had  put 
themselves  upon  the  country.  The  evidence,  therefore, 
should  have  been  received,  and  the  defendants  permit- 
ted to  read  to  the  jury  such  portions  of  the  book  as  in 
their  judgment  authorized  the  publication  complained 
of  as  libellous.    As  the  question  to  be  submitted  to  the 

*  The  case  of  Cooper  v.  Stone  was  correctly  decided,  but  it  is  respectfully  suggest- 
ed, not  for  the  true  reason.  The  learned  judge  who  delivered  the  judgment  of  the 
court,  assumes  that  the  demurrer  admits  that  the  defendant  under  the  pretext  of  crit- 
icism', had  calumniated  the  plaintiff.  "  The  difficulty,"  says  the  judge,  "  of  sustain- 
ing this  demurrer,  lies  in  its  acfmi/^'wr; //jat  <Ae  plaintiff's  moral  character  had  been 
fahehj  and  maliciously  assailed."  The  defendant,  and  no  doubt  the  learned  pleader 
who  interposed  the  demurrer,  must  have  been  greatly  suprised  by  this  annunciation, 
for  it  is  not  to  be  presumed  that  such  an  admission  was  the  object  of  the  demurrer; 
and  yet,  as  before  observed,  the  demurrer  was  properly  over-ruled.  It  was  manifest 
from  the  paper  books,  that  the  plaintift'  meant  to  insist  that  under  the  pretext  of  crit- 
icism the  defendants  had  maliciously  slandered  him,  and  he  had  an  undoubted  right 
to  bring  his  action  and  submit  the  question  to  a  jury,  whether  the  publication  was  a 
fair  criticism,  or  a  libel  under  the  pretext  of  a  criticism.  Tlie  publication  contained 
matter  which  miijht  or  might  not  be  libellous,  according  as  a  jury  should  find  upon 
the  question  whether  the  publication  was  or  was  not  ajair  criticism;  and  that  was 
a  question  of  fad  to  be  determined  by  a  jury,  and  upon  which  the  court  had  no  right 
lo  pass— indeed,  could  not  understand ingly  pass,  without  an  examination  of  the  work 
alleged  to  have  been  criticised  :  in  doing  which  they  would  depart  from  their  appro- 
priate duties  as  a  court,  and  invade  the  province  of  the  jury.  As,  therefore,  enough 
appe.ired  to  entitle  the  plaintiff  lo  claim  that  his  case  should  be  submitted  to  a  jury, 
the  only  proper  course  was  to  over  rule  the  demurrer  and  send  the  parties  down  to 
trial  at  the  circuit. 


INTRODUCTION.  43 

jury  upon  this  part  of  the  case,  was  cs  to  the  fairness 
of  the  criticism,  how  could  they  pass  upon  it,  unless 
the  subject  of  the  alleged  criticism  was  submitted  to 
them  ?  and  in  case  they  should  find  that  the  criticism 
was  unfair  how  could  they  understandingly  assess  the 
damages,  without  seeing  the  work  which  had  been  crit- 
icised ?  for,  though  they  might  find  for  the  plaintiff, 
they  might  consider  the  extenuating  circumstances  such 
as  to  require  but  a  nominal  verdict. 

If  the  defendant  fail  in  establishing  a  justification,  or 
in  shewing  that  he  is  protected  from  legal  liabilitij  by 
the  occasion  and  circumstances  under  which  the  words 
were  spoken  or  libel  published,  he   may   then  adduce 
such  evidence  as  may  be  in  his  power  in  mitigation  of 
damages.     The  rule  on  this  subject,  as  laid  down  in 
Knobell  V.   Fuller,  infra  vol.  II,   p.   96,  note  p,   and 
Peake's  Ev.  (by  Norris,)  App.  xxxii,  is:  that  in  an  ac- 
tion of  slander,  a  defendant  may,  in  mitigation  of  dam- 
a<'es,  give  any  evidence  short  of  such  as  ivould  be  a 
complete  defence  to  the  action  if  specially  pleaded.    It 
is  true,  that  both  in  England  and  here,  objections  have 
been  made  to  this  rule.     It  has  been  said,  that  to  allow 
evidence  of  particular  facts  to  be  adduced  tending  to 
show  that  the  plaintiff  was  really  guilty  of  the  charge 
imputed  to  him,  would  be   to  overturn   the  rule  laid 
down  in   Underivood  v.  Parkes,  2  Str.  1200,  viz :  that 
the  truth  of  the  imputation   should  not  be  given  in  evi- 
dence under  the  general   issue   even  in  mitigation  of 
damages  ;   and  it  has  been  asked  if  the  rule  of:  Knobell 
V.  Fuller  was  adopted,  how  would  it   be  possible  to 
draw  the  line,  and   to  restrain  the   evidence   o^  facts 
tending  to  throiv  suspicion  on  the  plaintiff  within  such 
limits  that  it  should  not  produce  actual  conviction  on 
the  minds  of  the  jury  ;  and  it  has   also  been  said  that 


44  INTRODUCTION. 

the  practice  would  be  attended  with  ali  the  hardship 
and  inconvenience  which  would  result  from   admitting 
a  complete  justification  under  the  general  issue,  for  the 
plaintiff  would  be  equally  liable  to  surprise,  and   as 
little   able  to   meet  the  charge  in  the  one  case  as  the 
other.     So  much  of  the  rule  of  Knobell  v.  Fuller,  as 
permits   the  giving    in    evidence    of  facts    tending  to 
throw  suspicion  upon  the  plaintiff;   (and  such  probably 
is  its  sound   construction,  for  it  is  the  practice  of  the 
courts  in  England  to  receive  such  evidence,)  it  is  con- 
ceded  is  indefensible;   (See  note   [I],  vol.  II.  p.  96, 
infra) ;  but  in  respect  to  the  remainder  of  the  rule,  it 
is  submitted  there  is  no  force  in  the  objection.     The 
objection  assumes  that  no  facts  can  be  proved  in  miti- 
gation of  damages  but  those  of  which  the  plaintiff  has 
been  apprised  previous  to  the  trial  of  the  cause,  where- 
as in  the  action  of  slander  it  is  not  necessary  (as  has 
been  before  shewn)  {o  j)lead  specially  the  matter  relied 
upon  in  defence,  except  when  the  defendant  intends  to 
insist  upon    a  justification   or   the   statute   of  limita- 
tions ;   and  consequently  any  evidence   which   goes  to 
shew  that  in  equity  and  good  conscience  the  plaintiff  is 
not  entitled  to  recover  is  admissible   under  the  general 
issue.     Formerly  the  truth  of  the  words  was  given  in 
evidence  under  the  general  issue  in  mitigation  of  dam- 
ages,  but  the  resolution  of  the  judges  in  Underwood  v. 
Parkes,  put  an  end  to  that  practice,  and  now  the  truth 
of  the  words  cannot  be  given  in   evidence   unless  the 
facts  relied  upon  are  specially  pleaded  in  justification, 
and  the  matter  set  up  in   the  plea  of  course  must  pre- 
sent a  bar  to  the  action,  or  the  plea  will  be  adjudged 
ill. 

Besides  :  the  point  of  the  objection  to  the  rule  of 
Knobell  v.  Fuller  is,  that  if  the  evidence  permitted  by 


INTRODUCTION.  45 

it  be  received,  the  rule  of  Underwood  v.  Parkes,  will 
be  overturned.     The    latter  rule  excludes   only  facts 
tending  to  show  the  truth  of  the  charge  imputed,  and 
has  no  applicability  to  facts  offered  in  mitigation,  when 
all  idea  of  justification  is   abandoned.     The  defendant 
therefore  may  in  mitigation   of  damages   adduce   any 
evidence  short  of  what  would  be  a  complete  defence  to 
the  action  if  specially  pleaded,  for  the  purpose  of  en- 
lightening the  jury,  and  enabling  them  understandingly 
to  pronounce  upon  the  quo  animo  the  publication  was 
made,  and  to   fix   the    amount  of  damages  which   the 
plaintiff  ought  to    recover.     Here    again,    a  lion    has 
been  found  in  the  way.     It  has  been  said  that  if  a  de- 
fendant in  an  action  of  slander  interpose  a  plea  of  justi- 
fication and  fail  in  its  proof,  that  he  shall  not  be  allow- 
ed to  give  any  evidence  in  mitigation,  other  than  as  to 
the  bad  character  of  the  plaintiff;    that  the  penalty  of 
failing  to  prove  a  plea  of  justification,  is  to  deprive  the 
defendant  of  the  right  of  adducing   such   evidence  in 
mitigation    of  damages    under   the    general    issue,    as 
would  have  been  admissible  under  that  plea,  had  not  a 
plea  of  justification   accompanied  it.     This  is  denied 
to  be  law.     "  Mihil  quod  est  contra  rationem  est  lici- 
turn,"  says   Sir  Edward   Coke,   "for  reason,"   he 
adds,  "  is  the  life  of  the   law  ;  nay  the  common  law  it- 
self is  nothing  else  but  reason."     The  defendant  is  ex- 
pressly authorized  by  statute,  to  join  the  plea  of  the 
general  issue  with  a  special  plea  of  justification  ;  and 
it  cannot  be  that  the  failure  to  prove  one  plea  deprives 
him  of  the  benefit  of  the  other.     It  has   also  been  said 
that  the  placing  upon  the  record  a  plea  of  justification 
which  the  defendant  fails  to  prove,  shall,  as  evidence  of 
malice,  enhance  the  damages.     Without  stopping  to 
controvert  the  soundness  of  this  last  proposition,  which 


46  INTRODUCTION. 

it  is  supposed  might  readily  be  done,  and  conceding  it 
to  be  evidence  of  malice,  it  is  sufficient  to  observe 
that  nothing  more  can  be  claimed  for  it  than  the  effect 
to  which  it  is  entitled  as  evidence  in  aggravation  ; 
and  if  so,  no  principle  is  better  settled  than  that  evi- 
dence in  aggravation  may  be  met  by  evidence  in  miti- 
gation.* 

There  is  no  rule  of  law  which  forbids  a  defendant  in 
an  action  of  slander,  who  has  pleaded  a  justification 
and  failed  to  prove  it,  from  turning  round  and  offering 
in  mitigation  of  damages  evidence  which  neither 
proves  the  truth  of  the  charge  imputed  to  the  plaintiff, 
or  has  a  tendency  to  do  so  ;  there  are  dicta  requiring 
such  evidence,  under  such  circumstances,  to  be  reject- 
ed, but  there  is  only  one  decision,  and  that  in  a  nisi 
prius  case,  which  has  been  over-ruled  by  two  other 
nisi  prius  cases,  and  is  at  war  with  the  first  principles 
of  the  law  of  slander  and  the  rules  of  pleading.  (See 
infra  vol.  II.  p.  97,  note  [2].)  Every  principle  of  jus- 
tice requires  the  admission  of  such  evidence.  Suppose 
a  defendant  undertakes  to  justify  a  charge  of  robherijy 
and  it  turns  out  in  evidence  that  the  plaintiff  a^^em;)/ed 
to  commit  a  robbery  but  was  interrupted  in  its  execu- 
tion, so  that,  technically,  a  robbery  was  not  committed 
— can  it  be  doubted  but   that   evidence  of  the  attempt 

*  In  1S18  it  was  held  by  the  supreme  court  of  M.assacliusctts  in  the  case  of  Jack- 
ton  V,  Stetson  and  wife,  IS  Mass.  R.  -IS,  that  a  plea  of  justijication  accompanyitig  the 
cC  ieral  issue,  was  proof  of  the  speaking  of  the  words  ;  and  it  was  further  hekl  tliat 
such  plea  of  justification  if  the  defendant  failed  to  establish  it  by  proof,  was  evidence 
of  malice.  Tlie  first  proposition  was  reiterated  by  the  s.ime  court  in  1822,  in  the 
case  of  Alderman  v.  French,  1  Pick.  1.  The  rules  tlius  laid  down  being-  considered 
a  departure  from  the  common  law,  the  legislature  of  that  state  in  1826,  passed  an 
act  declaring  ihat  a  pka  of  justijication  should  not  he  taken  as  evidence  of  tlie  speak- 
ing of  the  words,  nor  should  such  plea,  if  the  defendant  failed  to  citabliih  it,  he  of 
itself  proof  of  malice;  but  that  the  jury  should  decide  upon  the  whole  case  whether 
the  special  pica  was  or  was  not  put  in  with  a  malicious  intent.     See  5  Pick.  299. 


INTRODUCTION.  47 

to  rob  would  be  admissible  in  mitigation,  notwithstand- 
ing the  failure  to  justify.  Again:  Suppose  the  plain- 
tiff charged  with  having  stolen  the  horse  of  A.  on  a 
certain  day  and  at  a  designated  place,  and  the  defend- 
ant should  plead  or  give  notice  that  he  would  prove 
the  truth  of  the  charge  ;  and  it  should  be  proved  that 
the  plaintiff  on  the  day  and  at  the  place  specified  did 
steal  a  coiv,  (but  not  a  horse,)  the  property  of  A. 
Here,  also,  the  defendant  would  fail  in  verifying  his 
plea,  and  a  verdict  would  be  rendered  against  him  ; 
for  it  is  a  settled  rule  of  law  applicable  to  this  action, 
that  he  who  would  justify  a  charge  of  felony,  must  jus- 
tify as  to  the  specific  charge  laid,  and  cannot  set  up  a 
charge  even  of  the  same  crime,  if  distinct  as  to  the 
subject  matter  ;  but  can  there  be  a  doubt  that  the  evi- 
dence of  the  felony  perpetrated  is  admissible  in  vnili- 
gation  of  damages  ?  Unless  it  was  received,  the  de- 
fendant might  be  saddled  with  a  heavy  verdict  ;  and  if 
admitted,  no  jury  could  be  found  who  would  give  a 
verdict  for  more  than  a  nominal  sum.* 

The  only  objection  to  the  evidence  that  can  be  im- 
agined in  the  cases  supposed,  is  that  it  might  lead  to 
surprise  ;  which  would  be  unanswerable  were  the  mat- 
ter offered  in  evidence  such,  that  it  could  be  pleaded 
in  bar,  for  then  it  could  not  be  given  in  evidence  in 
mitigation  of  damages,  under  the  general  issue.  The 
evidence  offered  in  the  cases  supposed,  could  not  be 
pleaded  in  bar,  and  yet  the  ends  of  justice  would  im- 
peratively demand  that  the  defendant  should  have  the 
benefit  of  it  on  the  trial  of  the  cause,  so  that  the  jury 
might  be  properly  guided  in  fixing  the  amount  of  the 

*  The  case  of  Andrews  v.  Vanduzer,  11  Johns.  R.  38,  is  a  striking  instance  of  tha 
effect  of  refusing  evidence  in  mitigation,  after  the  failure  cf  the  defendant  to  verify  a 
plea  of  justification. 


48  INTRODUCTION. 

recovery.  In  reference  to  evidence  in  mitigation,  the 
objection  of  surprise  docs  not  lie,  and  accordingly  in 
actions  for  criminal  conversation,  and  for  seduction, 
particular  acts  of  vice  and  immorality  on  the  part  of 
either  the  plaintiff  or  his  wife  in  the  first  action,  or  of 
the  party  seduced  in  the  second,  are  received  without 
objection  under  the  plea  oi^  not  guilty.  Evidence  of 
the  bad  character  of  the  plaintiff  is  admissible  in  miti- 
gation of  damages,  because  a  man  of  blemished  repu- 
tation is  not  entitled  to  that  measure  of  damages  which 
would  be  awarded  to  a  party  whose  character  is  un- 
tarnished. This  it  is  supposed  settles  the  principle  of 
evidence  in  mitigation.  Whatever  will  have  a  legitimate 
tendency  to  reduce  the  damages  is  admissible  in  evidence 
in  mitigation.  It  has,  however,  been  said  that  evidence 
only  o^  general  character,  and  not  o^ particular  facts, 
affecting  the  character  of  the  plaintiff,  is  admissible; 
the  reason  assigned  being,  that  though  a  plaintiff  may 
be  presumed  ready  at  all  times  to  sustain  his  character 
by  proof,  the  same  presumption  cannot  be  made  as  to 
every  act  of  his  life.  This  reason  would  exclude  all 
evidence  of  particular  facts,  the  object  of  which  is  the 
reduction  of  damages,  and  is  manifestly  unsound  as  it 
comes  in  conflict  with  the  general  rule  in  relation  to 
the  admission  of  evidence  in  mitigation,  viz  :  that  a 
defendant  may  give  any  evidence  for  that  purpose  short 
of  what  would  he  a  complete  defence,  if  specially 
pleaded.  It  belongs  to  the  rule  of  evidence  impeach- 
ing the  character  of  a  witness  for  truth,  but  has  no  apr 
plicability  to  evidence  impeaching  the  character  of  a 
plaintiff. 

The  author  of  the  following  treatise  holds  the  doc- 
trine, notwithstanding  the  provisions  of  the  act  of  32 
Geo.  III.  c.  60,  that  on  the  trial  of  an  issue  upon  an 


INTRODUCTION.  49 

indictment  for  a  libel,  the  question  whether  the  matter 
published  amounts  to  a  libel,  still  belongs  to  the  court, 
and  not  to  the  jury  ;  in  other  words,  that  it  is  a  mere 
question  of  law.  Differing  with  him  in  the  construc- 
tion of  that  statute,  and  inasmuch  as  the  act  of  the 
legislature  of  the  state  of  New  York,  of  1805,  con- 
cerning libels,  was  passed  in  conformity  with  the  prin- 
ciples of  the  act  of  32  Geo.  III.  ch.  60,  upon  the  occa- 
sion of  the  assertion  here,  of  the  principles  which  had 
been  advanced  in  England,  and  led  to  the  passage  of 
the  English  act,  it  is  ventured  to  make  a  few  remarks 
expressing  such  dissent,  as  would  be  the  source  of  the 
deepest  mortification  to  the  editor,  to  give  cause  of 
suspicion,  by  his  silence,  that  he  acquiesced  in  the 
views  of  the  author  on  this  subject. 

The  act  of  32  Geo.  III.  ch.  60,  was  passed  in  1792, 
in  consequence  of  doctrines  held  by  the  Court  of 
King's  Bencir  on  the  subject  of  the  law  of  libel,  which 
were  deemed  by  the  Parliament  of  England  an  innova- 
tion upon  the  law  of  the  land  ;  oppressive  and  unjust 
to  individuals  ;  and  destructive  of  the  liberty  of  the 
press.  The  judges,  in  crim^inal  trials  for  libel,  when 
there  were  no  facts  or  circumstances  proving  justifica- 
tion or  excuse  in  point  of  law,  directed  the  jury  to  find 
the  defendant  guilty,  if  they  were  satisfied  as  to  the 
fact  of  publication,  and  the  truth  of  the  innuendoeSy 
without  passing  upon  the  question  of  whether  the  pub- 
lication was  or  was  not  a  libel,  but  leaving  it  to  be 
determined  by  the  court  as  a  question  of  law.  The 
act  of  32  Geo.  III.  was  accordingly  passed,  whereby 
it  was  declared  and  enacted,  that  a  jury  might  give  a 
general  verdict  of  guilty  or  not  guilty  upon  the  whole 
matter  put  in  issue,  upon  the  trial  of  an  indictment  or 
information,  and  should  not  be  required  or  directed  by 

Vol.  I.  7 


50  INTRODUCTION. 

the  court  or  judges  before  whom  the  trial  was  had,  to 
find  the  defendant  guilty  merely  on  the  proof  of  the 
publication  by  the  defendant  of  the  paper  charged  to 
be  a  Jibel  and  of  the  sense  ascribed  to  it  in  the  indict- 
ment or  information.  The  doctrine  of  the  King's 
Bench  intended  to  be  corrected  by  this  act,  was  assert- 
ed and  applied  in  the  State  of  New  York  on  the  trial 
of  the  indictment  in  the  case  of  The  People  v.  Cros- 
well  in  July,  1803,  for  an  alleged  libel  upon  Thomas 
Jefferson;  and  the  Supreme  Court  being  equally 
divided  in  opinion  upon  the  question,  (the  court  tempo- 
rarily being  composed  of  but  four  judges,)  an  act  was 
passed  in  1805,  substantially  like  that  of  32  Geo.  III. 
ch.  60,  but  broader  in  its  terms  ;  as  it  not  only,  like 
that  act,  declares  the  right  of  the  jury  to  find  a  general 
verdict,  and  forbids  a  direction  to  convict  the  defend- 
ant merely  on  the  proof  of  the  publication  of  the  mat- 
ter charged  to  be  libellous  and  of  the  sense  ascribed  to 
it  in  the  indictment,  but  declares  and  enacts  that  on 
the  trial  of  every  indictment  for  a  libel,  the  jury  who 
shall  try  the  same,  shall  have  a  right  to  determine  the 
law  and  the  fact ^  under  the  direction  of  the  court,  in 
like  manner  as  in  other  criminal  cases.  Mr.  Starkie 
insists  that  the  principal  object  of  the  act  of  32  Geo. 
III.,  was  to  remove  the  anomalies  and  peculiarities  by 
which  trials  for  libels  were  distinguished  from  those  for 
other  offences,  and  that  the  legislature  meant  to  leave 
the  question  ivhether  the  matter  published  amounted  to 
a  libel,  as  before,  a  question  of  law  ;  and  it  is  un- 
deniable that  he  is  supported  in  this  construction  of 
the  statute  by  the  opinion  of  the  Court  of  King's 
Bench,  in  the  prosecution  for  a  libel  of  Sir  Francis 
Burdett :  the  judge  presiding  at  the  trial  of  that  case 
having  charged  the  jury  that  they  must  take  the  law 


INTRODUCTION.  61 

from  him  as  to  ivhether  the  publication  was  or  was  not 
a  libel — in  which  he  was  sustained  by  the  whole  court, 
who  held  that  such   was  the  correct  mode  of  leaving 
the  question  to  the  jury  under  the  act  of  32  Geo.  III. 
This  decision  was  made  in  1830.     In  1840,  however, 
in   the   case  of  Bailis  v.   Laivrence,   11   Adoph.   and 
Ellis  920,   that  act  received  a  construction   more   in 
consonance  with  the  intention  of  the   law-makers,  as 
expressed  upon  its  face,  and  as  evidenced  by  the  his- 
tory of  its  enactment.     In  Bailis  v.  Lawrence,  it  was 
held   by   Lord  Denman,  C.  J.,  and   his  opinion   was 
concurred  in  by  the  other  judges,  that  the  object  of  the 
act  of  32  George  III.  was  to  declare  the  law  of  libel 
in  criminal  cases  to  be   the  same  as  it  was  in  civil 
cases  ;   that  the  act  was  applicable  only   to   criminal 
cases,  but  it  was  a  declaratory  act,  and  the  importance 
of  declaring  the  law  existed  only  in  the   case  of  crim- 
inal libels.     In  civil  cases  a  jury  never  were  required 
to  find  a  verdict  against  the  defendant  in  an  action  for 
a  libel,  upon  the  mere  proof  of  the  publication  and  of 
the  truth  of  the  innuendoes  ;    and  if  the  object  of  the 
act,  as  asserted  in  Bailis  v.  Lawrence,  was  to  declare 
the  law  of  libel  in  criminal  cases  to  be  the  same  as  it 
was  in  civil  cases,  it  necessarily  follows  that  the  view 
taken  of  the  act  in  the  case  against  Sir  Francis  Bur- 
dett,  viz  :    that  the  legislature  meant  to  leave  the  ques- 
tion whether  the  matter  published  amounted  to  a  libel 
as  before,  a  question  of  law,  must  be  erroneous.     If 
the  King's  Bench,  in  Bailis  v.   Lawrence,  were  right 
in  the  construction  put  upon  the  act  of  32  George  III., 
there  can  be  no  doubt  that  in  the  state  of  New  York, 
no  court  or  judge,  under  the  act  of  1805,  has  the  power 
to  require  or  direct  a  jury  to  find   a  defendant  on  a 
prosecution  for  a  libel,  guilty,  merely  on  the  proof  of 


52  INTRODUCTION. 

the  publication  by  the  defendant  of  the  paper  charged 
to  be  a  libel,  and  of  the  sense  ascribed  to  it  in   the  in- 
dictment ;    or  to  instruct  them  that  they  must  take  the 
law  from  the  court  or  judge,  as  to  whether  the  pubhca- 
tion  is  or  is  not  a  libel  ;    for  here,  by   an  express  en- 
actment of  the  statute,  it  is   declared,  that   the  jury 
shall  have  the  right  to  determine  the  latv  and  the  fact. 
It  is,  however,  of  less   consequence  to  enquire  what 
is  the   law  in  reference  to  criminal  cases  for  libels, 
than  to  ascertain  what  it  is  in  respect  to  civil  cases. 
State  Prosecutions  for  libels,  hitherto  have  been   rare 
in  this  country,  and  from  the  nature  of  our  political  in- 
stitutions necessarily  will  be  so  for  the  future.     The 
citizens  of  a  country  boasting  to  be  free,  will  not  and 
should  not  endure  to  have  the  liberty  of  speech  and  of 
the  press  restrained   or  controlled   by  public  prosecu- 
tions.    Error  of  opinion,  said  Jefferson,  may  be  safely 
tolerated  where  reason  is  left  free  to   combat  it  ;    and 
when  public  opinion  shall  become  so  corrupt  or  besot- 
ted as  not  to  be  influenced  by  reason,  the  reform  to  be 
obtained  by  the  lash  of  the  law  will  be  of  small  avail. 
Public  prosecutions  for  individual  wrongs  may  occa- 
sionally occur,  but  they  also  must  be  rare,  or  the  pub- 
lic voice  will  be  heard  denouncing  the  prosecutor  who 
attempts  to  enforce  the  penalty  of  fine  and  imprison- 
ment for  personal  defamation,  when  complete  satisfac- 
tion in  damages  may  be  obtained  in  a  civil  action. 
The  statutes  concerning  libels  in  England  and  here, 
and  the  decisions  under  the  former,  have  been  adverted 
to,  more  for  the  purpose  of  deducing  principles  bear- 
ing upon  civil  cases  or  private  actions,  than  to  show  what 
is  the  law  in  criminal  cases.      In  Baylis  v.  Lawrence, 
besides  what  has  already  been  cited  as  said  by    the 
judges,  it  was  held  that  under  the  act  of  32  Geo.  III., 


INTRODUCTION.  53 

the  presiding  judge  is  not  bound  to  state  his  opinion  to 
the  jury  whether  the  pubUcation  is  or  is  not  libellous  ; 
and  Lord  Denman,  C  J.  observed  that  he  had  al- 
ways followed  the  practice  adopted  in  that  case  by  the 
presiding  judge,  of  leaving  it  to  the  jury  to  say, 
whether  under  all  the  circumstances  the  publication 
amounts  to  a  libel.  This  was  not  new  doctrine.  Long 
previous  to  this  case,  Lord  C.  J.  Abbott,  in  Fair- 
man  V.  Ives,  5  Barn.  &.  Aid.  642,  submitted  to  the 
jury  the  facts  and  circumstances  attending  a  publica- 
tion alleged  to  be  libellous,  and  left  it  to  them  to  say 
whether  it  was  libellous  or  not,  and  the  jury  having 
found  for  the  defendant,  the  court  refused  to  grant  a 
new  trial.  Fairman  v.  Ives  was  tried  in  1822,  and 
the  same  course  has  since  been  pursued  in  a  great 
variety  of  cases,  cited  in  Ch.  XII.  of  the  first  volume 
of  the  body  of  this  work.  (See  infra  vol.  ii.  p.  356, 
note  [1],  and  p.  358,  note  [1].  See  also  same  vol.  p. 
262,  note  [I],  and  p.  25S,  note  [1].) 

Albany,  July  12,  1843. 


Note. — It  is  only  necessary  to  add,  as  a  key  to  the  notes,  that  the  single  ietteri 
(a),  (6),  &c.,  designate  the  notes  of  the  author  ;  the  double  letters  [a  a],  &c.,  notes 
found  in  the  Appendix  to  the  second  volume  of  the  London  edition,  and  transferred 
to  the  body  of  the  work  for  the  greater  convenience  of  the  reader ;  and  the  figures 
[I],  [2],  &c.,  designate  the  notes  of  the  editor. 


PRELIMOAEY   DISCOURSE. 


Ought  the  faculty  of  communication  by  speech  or  writing  (a) 
to  be  restrained  by  the  municipal  law  ? 

If  so,  then  within  what  limits  ? 

The  former  question  may  readily  be  answered  in  the  affirmative  ; 
to  answer  the  latter  is  to  solve  a  problem  of  difficulty,  but  of  most 
essential  importance  to  the  interests  of  society  ;  it  is  to  discover  and 
establish  such  legal  limits  to  intellectual  intercourse,  as  shall  secure 
to  the  community  the  greatest  quantity  of  good. 

Where  it  is  possible,  consistently  with  natural  justice,  that  is,  with 
the  principles  of  general  expediency,  wholly  to  permit,  or  wholly  to 
prohibit,  the  work  of  legislation  is  easy  ;  it  is  arduous  and  difficult  in 
those  cases  only  Avhere  either  unlimited  license  on  the  one  hand,  or 
total  restraint  on  the  other  would  be  inexpedient,  and,  conse- 
quently, where  it  becomes  necessary  *to  establish  interme-  [  *ii  J 
diate  legal  boundaries,  by  means  of  apt  and  definite  limits. 

Legislation,  on  the  present  subject,  is  peculiarly  liable  to  difficul- 
ties of  this  nature  ;  it  is  usually  impracticable,  or  at  least  impolitic, 
either  wholly  to  sanction  or  wholly  to  forbid  any  particular  class  of 
communications  on  any  matters  whatsoever,  and,  consequently,  the 
question  arises,  how  shall  the  restraining  law  be  framed,  so  as,  with- 
out wholly  excluding  either  of  two  or  more  conflicting  mischiefs,  to 
reduce  the  aggregate  of  evil  to  its  minimum.  To  place  a  bridle  on 
men's  tongues,  so  that  they  be  restrained  from  calumny,  without  lay- 
fa)  In  order  to  avoid  repetition  in  the  following  pages,  unless  the  context  render  a 
narrower  meaning  necessary,  the  terra  writing  is  to  be  understood  to  include  all  kinds 
of  communications,  by  printing  and  painting,  or  any  other  signs  or  symbols,  as  well 
as  writing. 


iii  PRELIMINARY  DISCOURSE. 

ing  irksome  fetters  on  the  ordinary  communications  of  society,  and 
to  curb  the  licentiousness,  without,  at  the  same  time,  cramping  the 
salutary  freedom  of  the  press,  is  one  of  the  most  arduous,  but,  at  the 
same  time,  valuable  achievements  of  legislative  wisdom. 

Little  need  be  observed  as  to  the  importance  of  laws  by  which 
every  man's  conduct  is  to  be  regulated,  not  only  whenever  he  writes, 
but  even  whenever  he  speaks,  or  as  to  the  necessity  for  legislative 
caution,  where  the  mischief  and  inconvenience  which  would  result 
from  even  a  slight  defect,  are  liable  to  indefinite  multiphcation  by 
the  constant  application  of  the  law.  It  were  lost  time  to  dwell  on  mi- 
nute errors,  when  considerations  of  a  far  higher  and  more  urgent 
character  demand  attention. 

The  faculty  of  speech,  one  of  the  first  and  noblest  gifts  of  the 
Creator,  designed,  no  doubt,  for  the  expression  of  gratitude  to  the 
Donor,  of  truth  and  good-will  towards  men  may  be  abused,  for  the 

purposes  of  blasphemy,  fraud,  and  malice. 
[  *iii  ]  *Those  admirable  means  which  have  been  devised  by 
human  ingenuity  (6)  for  giving  permanency  and  ubiquity 
to  thought,  for  providing  durable  receptacles  to  knowledge,  in  which> 
like  a  valuable  treasure,  it  may  be  preserved,  accumulated,  and  trans- 
mitted to  distant  regions  and  to  all  ages  ;  by  the  aid  of  which,  the 
wise  and  the  learned,  though  locally  distant,  may  unite  in  the  service 
of  science,  and  availing  themselves  of  the  labours  of  past  generations, 
accomplish  magnilicent  triumphs  in  the  cause  of  reason  and  of  truth, 
to  which  individual  talent  and  exertion  might  have  ever  proved  une- 
qual, those  honoured  and  splendid  means  to  which  mankind  must 
trust,  for  the  safe  preservation  of  all  that  is  sacred  and  valuable  in 
their  religion,  their  history,  their  laws,  for  the  security  of  their  liber- 
ty and  their  possessions,  to  which  they  are  indebted  for  every  intel- 
lectual and  refined  enjoyment,  in  short,  for  all  the  blessings  of  civi- 

(6)  Some  learned  men  have  laboured  to  prove  that  letters  are  not  of  human  inven- 
tion, but  divine  revelation.  Surely,  it  is  more  consistent  with  the  bounty  of  Provi- 
dence, to  suppose  that  faculties  were  originally  given  adequate  to  the  discovery,  than 
that  a' special  interposition  should  be  necessary  for  the  purpose.  Universal  experi- 
ence manifests  the  intention  that  all  discoveries  and  improvements  in  science  and  ia 
art  should  be  worked  out  slowly  and  gradually,  by  means  of  the  ordinary  facultiea 
originally  bestowed  upon  our  race. 

It  is  not  difficult,  in  the  absence  of  any  satisfactory  tradition  on  this  subject,  to  form 
probable  conjectures  as  to  the  process  of  improvement,  which  has  led  from  the  depict- 
ing of  rude  resemblances,  to  such  remote  and  admirable  results. 


PRELIMINARY  DISCOURSE.  ui 

lized  life ;  those,  no  doubt,  may  be  fatally  abused  in  furtherance  of 

insidious  practices  against  the  peace  and  welfare,  or  even  the  very 

existence  of  civil  society.     They  may  be  perverted  into 

the  means  of  destroying  men's  religious  faith,  of  *extin-     [  *iv  ] 

guishing  their  sense  of  moral  obligation,  of  ministering  to 

every  evil  passion,  of  fostering  every  base  and  vicious  propensity, 

and  of  actually  accomplishing  every  crime. 

Such  being  the  unworthy  purposes  to  which  the  arts  of  ^yriting 
and  of  printing  have  been  so  frequently  misapplied,  it  is  manifestly 
of  the  most  essential  importance  that  such  practices  should  be  re- 
strained by  force  of  the  municipal  law.  The  reasons  for  restraint  are 
rendered  still  more  cogent,  whenever  two  circumstances  concur  :  the 
general  diffusion  of  knowledge,  by  an  extended  system  of  education, 
and  great  facility  of  communication,  by  the  agency  of  the  public 
press.  The  former  of  these  causes  tends  greatly  to  increase  the 
number,  as  well  of  those  who  are  capable  of  offending  in  this  respect, 
as  of  those  who  are  placed  within  the  sphere  of  their  influence  and 
danger  of  contamination ;  whilst  the  latter  multiplies,  to  a  tremendous 
extent,  the  facility  of  working  evil  by  unprincipled  and  immoral  pub- 
lications. 

So  long  as  man's  power  of  effecting  mischief  is  limited  to  his  own 
immediate  and  personal  efforts,  however  violent  and  noxious  they 
may  be,  against  the  persons  or  property  of  others,  the  evil  which  he 
works  must  be  of  a  local  and  limited  nature  ;  but  when  it  is  extended 
by  exerting  a  pernicious  and  wicked  influence  over  the  understand- 
ings of  mankind,  through  the  medium  of  the  press,  its  power  is  bound- 
ed neither  by  time  nor  place  ;  any  one  vicious  and  unprincipled  mind 
may,  as  it  were,  be  brought  into  contact  with,  and  is  enabled  to  ex- 
ercise its  influence  over  those  of  millions  :  thus  even  a  single 
individual,  *as  if  invested  with  a  kind  of  mischievous  ubi-  [  *v  ] 
quity.  is  enabled  to  disseminate  blasphemy,  sedition,  and 
immorality  to  the  remotest  borders  of  the  realm,  and  the  very  mass 
of  society  may  thus  be  exposed  to  the  danger  of  contamination  and 
corruption. 

The  main  object  of  the  following  Treatise  is  to  trace  the  municipal 
provisions  of  the  law  of  England  on  this  important  subject ;  but  it 
may  not  be  without  use,  certainly  not  without  interest,  to  devote 
some  brief  previous  attention  to  the  general  principles  on  which  such 

Vol.  I.  8 


V  PRELIMINARY  DISCOURSE. 

restraints  may  be  constructed,  and  to  inquire  whether  there  be  any, 
as  it  were,  natural  boundaries  to  be  discerned  by  which  such  com- 
munications ought,  with  a  view  to  the  convenience  and  happiness  of 
society,  to  be  limited.  One  rule  may  prevail  at  Athens  and  another 
at  Rome  ;  partial  variations  are  attributable  to  the  genius  and  tem- 
per of  the  people  (c),  to  the  political  constitution  under  which  they 
live,  to  their  peculiar  manners  and  habits,  yet  must  the  great  distinc- 
tions pointed  out  by  reason  and  natural  justice  be  common  to  all  coun- 
tries and  all  ages  (cT). 

Such  then  is  the  object  of  preliminary  inquiry  ;  an  occupation,  it 
must  be  confessed,  more  grateful  to  a  lawyer  than  the 
[  *vi  ]  tedious  detail  of  a  mass  of  *complicated  and  oftentimes 
conflicting  decisions,  in  much  the  'same  proportion  as  a 
casual  visit  to  foreign  countries,  to  contemplate  at  leisure  their  prin- 
ciples and  forms  of  justice,  would  be  more  agreeable  than  the  or- 
dinary routine  of  an  English  circuit. 

The  first  question,  that  is,  whether  such  communications  ought  to 
be  regulated  and  restrained  by  any  municipal  laws,  may  then,  it 
seems,  without  the  least  hesitation,  be  answered  in  the  affirmative. 

The  experience  of  all  nations  from  times  of  the  remotest 
antiquity,  shews  the  necessity  for  such  laws ;  their  rudiments 
are  to  be  found  in  all  stages  of  civilization,  however  imperfect, 
remote  and  proximate  to  barbarism,  (e)     Though  little  is  known  of 

(c)  Solon  being  asked  if  the  laws  he  had  given  to  the  Athenians,  were  the  best, 
replied  "  I  have  given  them  the  best  they  were  able  to  bear."  Montesq.  1,  19.  c. 
21.  Divorce  was  permitted  by  the  Mosaic  law  among  the  Jews  by  reason  of  the 
hardness  of  their  hearts. 

(d)  Est  quidem  vera  lex  recta  ratio,  nature  congruens,  diffusa  in  omnes  constaus 
sempiterna,— Nee  erit,  alia  lex  Eomse,  alia  Athenis,  alia  nunc,  alia  posthac,  sed  om- 
nes gentes  &  omni  tempore,  una  lex  &  sempiterna,  &  immutabilis  conlinebit;  unus- 
que  erit  communis  quasi  magister  &  inspector  omnium  deus. — Cic.  De  Rep.  ib.  3. 
Apud.  Lact.  lib.  6.  c.  8. 

(e)  So  far  as  it  is  allowable  to  speculate  on  the  growth  of  legislation  according  to 
the  increasing  exigencies  of  mankind,  it  is  probable  that  even  among  the  most  savage 
tribes,  to  impute  the  want  of  skill  or  bravery  would  be  a  reproach  exciting  resent- 
ment and  violence ;  the  increase  of  such  attacks  and  reprisals,  attended  as  it  would 
be  by  the  double  inconvenience  of  dissension  amongst  those  who  were  united  for 
some  common  object,  and  weakening  that  force  which  was  destined  for  other  pur- 
poses, whether  of  aggression  or  defence,  would  first  suggest  the  policy  of  restrain- 
ing such  insults,  and  substituting  legal  redress  for  personal  retaliation  of  aff"ronts. 

Such  laws,  however,  would   be  but  of   slow  growth   and  little   regarded   among 


PRELIMINARY  DISCOURSE.  vii 

the  laws  of  •ancient   Egypt, — the  venerable  territory  at     [  *vii  ] 
once  of  science  and  of  superstition,  yec   is  it  matter   of 
moral  certainty  that  they  were  not  destitute  of  such  restraints. 

any  people  whoso  principal  business  was  that  of  arms,  and  whose  policy  it  was  to 
cherish  a  high  and  daring  spirit,  whilst  a  warrior,  whose  courage  or  honour  was  re- 
reflecied  on,  would  but  reluctantly  delegate  the  duty  of  retribution  to  any  hands  but 
liis  own,  conscious  that  his  best  proof  that  the  imputation  was  undeserved,  would  be 
afforded  by  his  mode  of  avenging  such  an  affront. 

In  a  more  peaceful  and  settled  state  of  society,  when  men  had  begun  to  pay  de- 
ference to  civil  authority,  although  the  protection  of  their  persons  and  property 
from  violence  might  be  the  earliest  objects  of  legislative  provision,  yet  would  it 
very  soon  become  necessary  to  make  provisions  against  judicial  perjury  ;  and  as  such 
an  offence,  odious  as  it  must  always  be,  would,  whilst  the  administration  of  justice 
was  rude  and  imperfect,  be  highly  dangerous,  so  is  it  probable  that  the  penalties 
wculd  be  proportionally  severe.  By  the  ancient  Eoman  law  of  the  Twelve  Tables 
on  this  subject,  it  appears  that  a  corrupt  and  malicious  witness  expiated  his  offence, 
by  being  thrown  headlong  from  the  Tarpeian  rock,  in  other  respects,  it  is  presum- 
able, that  the  laws  against  defamation  M'ould,  in  all  early  stages  of  civilization,  be 
few  and  simple.  Their  main  object  would  be  the  preservation  of  the  public  peace» 
by  the  infliction  of  penalties  in  respect  of  oral  defamation  ;  libels  would  be  out  of 
the  question  when  few  could  read,  and  fewer  still  could  write.  Hence  it  is  that 
many  of  the  earliest  laws  which  history  has  transmitted  to  us,  are  of  a  penal  rather 
than  remedial  nature;  that  they  prescribe  specific  penalties  or  fines,  rather  than 
damages  proportioned  to  the  real  circumstances,  and,  as  is  usual  with  early  legisla- 
tors, that  their  enactments  are  not  general,  but  frequently  limited  and  confined  to 
particular  imputations,  which  were  considered  as  likely  to  produce  violence  and 
outrage. 

By  the  Athenian  laws,  specified  penalties,  which  varied  from  a  fine  of  two 
drachmas  to  500,  were  imposed,  in  respect  of  different  degrees  of  defamation,  some  of 
which  were  specifically  and  expressly  prohibited.  Thus  the  fine  or  81x1]  xaxrjyoQiag, 
for  asserting  that  a  soldier  had  thrown  away  his  shield,  amounted  to  500 
drachmas.  See  below.  By  the  law  of  the  Twelve  Tables,  a  specific  fine  was  im- 
posed on  many  offences,  probably  including  that  of  defamation,  when  it  fell  within 
the  description  of  the  injur  ice  leviores,  though  the  punishment  of  fustigation  at  least 
was  imposed  on  more  atrocious  calumniators.  (See  the  observations  on  this  subject 
p.  XXXV.)  And  it  is  observable,  that  though,  in  later  times,  the  Romans  substituted 
an  assessment  of  damages,  [Estimatio  injurice,  apportioned  to  the  extent  of  the  in- 
jury, for  an  arbitrary  fine,  yet  that  no  distinction  was  ever  made  by  the  Roman  law, 
in  the  description  and  essence  of  the  offence,  between  criminal  and  civil  liability  ; 
whenever  the  offender  was  liable  in  damages,  to  the  individual  calumniated,  he  was 
also  subject  to  penal  censures.  To  the  latest  period  of  the  empire,  civil,  as  well  as 
criminal  liability,  depended  principally,  if  not  entirely,  on  the  ancient  and  primitive 
noUon,  that  personal  coiitumely  and  insult  was  of  the  essence  of  the  offence,  and 
upon  this  principle  it  is  that  the  peculiarities  of  the  Roman  law,  in  respect  of  libel 
chiefly  depend. 

This,  it  will  be  seen,  is  a  circumstance  which   constitutes   a   very   essential  and 
characteristic  distinction  between   the   law   of  England    and   that  of  Rome,  and    of 


Tiii  PRELIMINARY  DISCOURSE. 

[  *vm  ]  *The  well  known  fact  that  this  singular  people  erected 
a  tribunal  (/)  for  trying  the  conduct  even  of  their  kings 
after  death  and  of  decreeing  or  denying  the  honours  of  se- 
[  *ix  ]  pullure,  according  to  the  verdict,  *is  in  itself  sufficient  to 
demonstrate  not  only  that  they  fully  understood  and  ap- 
preciated the  value  of  reputation  and  character,  but  also  that  they 
duly  estimated  and  encouraged  the  love  of  reputation  as  a  great  moving 
principle  of  human  conduct ;  and  that  they  possessed  sagacity  sufficient 
to  turn  that  knowledge  practically  to  the  public  account,  by  using  this 
moral  power  in  the  most  forcible  and  advantageous  manner.  There 
is  perhaps  no  other  memorial  extant  of  this  extraordinary  nation  which 
so  strongly  characterizes  their  political  genius  as  does  this  remark- 
able institution  {g),  which,  however,  has  served  no  other  purpose 
among  those  who  have  copied  largely  from  Egypt  in  other  respects, 
than  to  supply  the  foundation  of  a  well  known  branch  of  pagan  my- 
thology, as  immortal  as  the  epic  poem  in  which  it  is  so  beautifully 
depicted.  The  effect  of  this  custom  among  the  Egyptians  must 
have  been  greatly  heightened  by  its  connection  with  their  super- 
stition, in  respect  of  the  rights  of  sepulture,  and  the  religious  neces- 

those  countries  which  have  adopted  the  civil  Jaw  :  for  the  law  of  England  regards 
criminal  and  civil  liability,  in  respect  of  calumnious  communications,  as  standing 
upon  entirely  distinct  fonndations ;  and  in  the  next  place,  has,  from  very  distant 
times,  considered  the  temporal  injury  to  a  mail's  estate,  and  not  the  contumely  or  in- 
sult of  the  agent,  as  the  ground  of  compelHng  reparation  in  damages. 

According  to  an  ancient  law  of  the  Burgundians,  "  Si  quis  alteram  concagatum 
clamaverit  120  denariis  mulctetur.  Si  quis  vulpeculam  alterum  clamaverit  vel  lep- 
orem  eodem  modo  mulcteur."  These,  as  is  observed  by  a  learned  writer,  [Barring- 
ton  on  the  Pena  1  Statues,]  appear  plainly  to  be  the  laws  of  a  warlike  nation,  in 
which  the  calling  another  by  a  name  which  implied  cunning  or  flight,  rather  than 
courage  or  resistance,  was  thought  a  heinous  infamy. 

To  a  much  later  and  more  mature  stage  of  civilization  must  those  laws  be  refer- 
red which  consider  defamation  not  merely  as  an  insult  to  the  feelings  or  dignity, 
which  must  be  repressed  for  the  sake  of  the  public  peace,  but  which  regard  reputa- 
tion as  a  civil  right,  from  its  being  intimately  and  inseparably  connected  with  the 
acquisition  and  secure  enjoyment  of  every  social  right,  dignity,  or  emolument,  and 
80  essential  a  safeguard  to  every  other  temporal  possession  and  enjoyment  that  to 
leave  it  unprotected  would  be  to  leave  every  man's  property,  liberty,  and  even  life 
insecure,  and  the  work  of  legislation  but  half  completed. 
{/)  Diod.  Sic.  B.  1. 

(g)  I  find  that  M.  Kollin  (Histoire  des  Egypticns,  73,)  has  characterized  this 
custom  as  one  of  the  most  remarkable  facts  in  ancient  history,  and  he  points  out  a 
very  singular  analogy  in  sacred  history.  The  Israelites  would  not .  suffer  those  of 
their  kings,  who  had  lived  wickedly,  to  be  buried  in  the  tombs  of  their  ancestors. 


PRELIMINARY  DISCOURSE.  x 

slty  of  preserving  the  bodies  of  their  dead  in  order  to  their  subse- 
quent reanimation. 

It  is  impossible  to  suppose  that,  whilst  even  after  death,  conduct 
and  reputation  were  the  subject  of  anxious  inquiry,  direct  and  im- 
mediate provision  was  not  also  made  by  the  laws  of  Egypt  for 
securing  and  preserving  the  characters  of  the  living. 

It  is  not,  however,  essential  to  the  present  purpose  to  examine  in 
detail  (/i),  the  provisions  connected  with  the  subject  in  the  laws  of 
JudEE  (0,  Greece,  or  Rome,  nations  which  probably  derived  their 

(h)  For  a  very  able  and  detailed  historical  account  of  the  law  of  libel,  see  Mr. 
Holt's  excellent  work  on  the  subject.    Second  edition,  Book  1.  ch.  1. 

(i)  Tlie  earlv  denunciations  of  the  Mosaic  law  against  defamation  are  few  and 
simple ;  no  specific  punishment,  except  in  an  instance  which  will  presently  be  allud- 
ed to,  was  appointed  against  calumniators.  There  is,  however,  scarcely  any  of- 
fence  which  is  more  frequently  alluded  to  in  the  psalms  of  David,  or  more  strongly 
described  in  the  energetic  and  figurative  language  of  the  east,  than  that  of  slander; 
whether  it  be  for  the  purpose  of  characterizing  the  conduct  of  depraved  and  mali- 
cious men,  of  denouncing  divine  vengeance  against  them,  or  depicting  the  wretched 
and  forlorn  state  of  their  unhappy  victims  ;  it  may  be  further  remarked  that  men- 
tion is  seldom  made  of  this  species  of  injury,  without  some  expression  which  shows 
that  slander  was  meant,  in  its  strict  sense,  as  implying  a  false  and   deceitful   repre- 

'^Ps'alm'.'i.     Thou  Shalt  destroy  them  that  seek  leasing;  the  Lord  wiU  abhor  both 

the  bloodthirsty  and  deceitful  man. 

10.    His  mouth  is  full   of  cursing,  deceit,  and  fraud;   under  his  tongue,  ungodli- 

ness  and  vanity. 

14  There  is  none  that  doeth  good,  their  throat  is  an  open  sepulchre,  the  poison 
of  asps  is  under  their  lips,  their  mouth  is  full  of  cursing  and  bitterness,  their  feet  are 

swift  to  shed  blood.  ■    r  n 

31.    Lei  the  lying  lips  be  put  to  silence  which  cruelly,  disdainfully,  and  dcspitefuUy 

speak  against  the  righteous. 

34.  What  man  is  he  that  lusteth  to  live  and  would  fain  see  good  days ;  keep  tby 
tongue  from  evil  and  thy  lips  that  they  speak  no  guile. 

35  raise  witnesses  did  rise  up  against  me  ;  they  laid  to  my  charge  things  that 
I  knew  not;  the  very  abjecls  came  against  mo  unawares,  making  mouths  at  me  and 
ceased  Bot.  They  imagine  deceitful  words  against  those  that  are  quiet  in  the  land, 
they  gaped  on  me  with  their  mouths,  and   said,  fie  on  thee  !   fie  on  thee  !   we  saw  it 

with  our  eyes.  j   m^ 

38.  My  lovers  and  my  neighbours  did  stand  looking   upon  my  trouble  and   my 

kinsman  stood  afar  off:  they  also  that  sought  after  my  life,  laid   snares  for  me,  and 

ihey  that  went  about  to  do  me  evil,  talked   of  wickedness  and  imagined  m.schiel  all 

the  day  long.  , 

52  Thy  tongue  imagineth  wickedness  and  with  lies  thou  cuttest  like  a  siiarp 
razor.  Thou  hast  loved  to  speak  all  words  which  may  do  hurt ;  0  thou  false  tongue, 
therefore  shall  God  destroy  thee  for  ever. 


xi  PRELIMINARY  DISCOURSE. 

[  *xu  ]  earliest  knowledge  of  jurisprudence  from  Egypt;  some  of 
their  *laws  will  afterwards  require  more  particular  atten- 
tion ;  for  the  present,  suffice  it  to  observe  that  they  all  contain  enact- 
ments imposing  prohibitions  and  restraint,  in  order  to  guard  against 
the  abuse  of  language,  by  converting  the  privilege  of  communica- 
tion into  the  means  of  ejffecting  private  injury  or  public  (k')  mischief. 
The  evils  which  necessarily  arise  from  a  licentious  abuse  of  the 
faculties  of  speaking  and  writing,  would  be  of  too  obvious  a  nature 
to  bear  inquiry  or  comment,  were  the  mere  necessity  for  restraint 
the  sole  object  of  investigation ;    but  a  far  more   difficult  consider- 

58.  The  ungodly  are  froward  even  from  their  mother's  womb  ;  as  soon  as  they 
are  born  they  go  astray  and  speak  lies,  they  are  venomous  as  the  poison  of  a  serpent. 

59.  Deliver  me  from  mine  enemies,  O  God  !  behold  they  speak  with  their  mouths 
and  swords  are  in  their  lips. 

69.  They  that  sit  in  the  gate  speak  against  me,  and  the  drunkards  make  songs 
upon  me.     See  also  Psalms  101,  102,  120,  140,  &c.  &c. 

The  publication  of  false  reports,  affecting  the  charaeter  of  others,  is  prohibited  by 
the  Mosaic  law,  (Exod.  xxiii.  1.)  although  no  punishment  is  annexed  to  a  violation 
of  the  law;  whether  that  was  left  to  the  discretion  of  the  judge,  or  no  punishment 
whatever  was  inflicted,  seems  to  be  doubtful.  See  Michaelis's  Comm.  on  the  Law  of 
Moses,  art.  221,  s.  2.  The  same  learned  writer  observes,  "  this  last  supposition 
(i.  e.  of  impunity,)  prevailed  with  respect  to  the  greater  number  of  extra-judicial  of- 
fences during  the  infancy  of  nations,  which  approaches  nearly  to  a  slate  of  barba- 
rism and  lawlessness,  wherein  mere  verbal  attacks  on  reputation  are  not  so  highly 
estimated,  nor  yet  even  violent  outrages  so  strictly  interdicted  as  afterwards.  But, 
on  the  contrary,  a  person  thus  injured  is  permitted  to  avenge  himself  on  his  tradu- 
cer,  provided  he  did  not  beat  him  to  death,  or  render  him  a  cripple.  If  a  wicked  ac- 
tion, which  a  man  related  concerning  his  neighbour  was  true,  he  received  no  punish- 
ment whatever ;  {or  iha  exceptio  veritatis  Ihen  OTperated  in  full  force."  Michaelis's 
Comm.  on  the  Laws  of  Moses,  art.  291.  s.  2.     Smith's  translation. 

There  was  one  instance,  and  but  one,  where  the  law  of  Moses  imposed  a  specific 
punishment  upon  the  publication  of  calumnious  falsehood,  and  that  was  where  a  man 
falsely  accused  his  wife  of  not  having  proved  a  virgin  on  the  wedding  night.  Deut. 
xxii.  13,  19.  The  penalty,  in  respect  of  such  a  charge,  which,  where  well  founded, 
■was  expiated  by  the  death  of  the  criminal,  was  threefold  :— Ist.  corporal  by  stripes  ; 
2ndly,  by  the  payment  of  a  pecuniary  fine,  viz.  100  shekels  to  the  woman's  father, 
which  was  the  highest  fine  imposed  by  the  Mosaic  law,  and  was  no  doubt  given  to 
the  father  in  respect  of  the  reproach  which  had  been  cast,  not  merely  on  the  woman 
herself,  but  her  parents,  brothers,  and  sisters,  and  the  whole  flimily;  Srdly,  byhis 
forfeiture  of  the  right  of  divorce. 

{k)  The  necessity  for  such  regulations  naturally  occurs  to  the  illiterate  as  well  as 
the  educated.  The  members  of  Benefit  or  Friendly  Societies,  in  this  country,  who 
usually  legislate  for  themselves,  seldom  complete  their  simple,  artless  code  without 
introducing  penal  prohibitions,  and  oftentimes  singular  ones,  against  unmannerly  and 
abusive  language. 


PRELIMINARY  DISCOURSE.  xii 

ation  remains  behind,  and,  in  order  to  judge  of  the  mode  and  extent 
of  the  limits  ■which  ought  to  be  imposed  on  such  communications,  it 
is  essentia],  in  the  first  place,  to  inquire,  as  to  the  nature  and  ex- 
tent of  the  evils  which  render  such  restraints  necessary,  or  at  least  ex- 
pedient. 

This  consideration  immediately  leads  to  a  very  important   and 
characteristic  distinction  between   such  evils  as  are  oc- 
casioned by  an  abuse  of  these  faculties,  'first,  to  individii-     [  'xiii   ] 
ah  in  ijarticular  (Z),  and  secondly,  to  society  in  (jeneral. 
In  law,  as   well  as  medicine,  it  is  natural  to  suppose,  a  priori,  that 
different  evils  would  require  difierent  remedies. 

The  most  serious  and  dangerous  form  in  which  an  injury  of  this 
nature  can  afi"ect  an  indtvidual,  is,  that  of  a  false  accusation  of  a 
crime ;  especially  where  it  is  aided  by  false  testimony,  in  a  court  of 
justice,  by  which  the  property,  liberty,  or  even  life  of  the  accused 
is  placed  in  direct  and  immediate  jeopardy.  The  making  a  false 
charge,  even  where  it  does  not  end  in  a  legal  assassination,  by  the 
death  of  an  innocent  party,  is  so  enormous  a  crime  in  its  conse- 
quences, and  so  odious  and  atrocious  an  abuse  of  the  forms  of  jus- 
tice, as  to  render  it  probable  that  this  species  of  defamation  would 
attract  notice  and  punishment  in  very  early  times  ;  and  it  is  remark- 
able that  the  first  denunciation  against  slander,  in  the  Mosaic  law, 
seems  to  be  coupled  *with  a  specific  denunciation  (m) 
against  judicial  calumny,  afterwards  more  emphatically  [  *xiv  ] 
repeated  in  the  Decalogue, 

(l)  When  the  injury  is  principally  to  the  individual,  it  is  obvious  that,  on  grounds 
of  natural  justice,  compensation  ought  to  be  made  to  him  ;  and  where  the  awarding 
damages  to  the  individual  injured  is  a  sufficient  restraint,  it  would  be  inconsistent 
with  the  first  principles  of  civil  liberty  to  inflict  a  further  penalty  by  fine  to  the  state, 
or  the  imprisonment  of  tlie  offender,  simply  for  the  reason,  that  such  further  re- 
straint is  unnecessary  ;  and  therefore  penal,  as  contra-distinguished  from  civil  lia- 
bility, ought  not  to  attach,  unless  either  where  restraint  is  necessary,  and  no  indi- 
vidual in  particular  is  injured,  as  in  the  case  of  a  blasphemous  or  immoral  publica- 
tion,  or  where,  though  an  individual  be  injured,  yet  the  public  are  also  injured  or 
placed  in  jeopardy,  cither  by  the  means  of  annoyance  used, — or  because  the  private 
remedy  is  in  itself  an  insufficient  restraint,  in  consequence  of  the  difficulty  of  enforc- 
ing it. 

(m)  Thou  shalt  not  raise  a  false  report ;  put  not  thine  hand  with  the  wicked  to  be 
an  unrighteous  witness.  Exod.  c.  xxiii.  v.  1.  See  also  Dcut.  xxvii.  25. — And  though, 
by  the  law  of  England,  judicial  perjury  is  accounted  but  a  misdemeanor,  unless,  in- 
deed, it  be  used  as  the  successfal  means  of  taking  away  the  life  of  an  innocent  per- 


xiv  PRELIMINARY  DISCOURSE. 

Such  practices,  which  tend  immediately  to  the  privation  of  pro- 
perty, liberty,  or  even  life  itself,  are  formidable  in  proportion  to  the 
probability  that  they  will  be  successful;  and,  therefore,  although 
they  must  at  all  times,  and  under  all  circumstances,  be  highly  dan- 
gerous, yet  is  it  obvious  that  they  are  the  more  particularly  to  be 
dreaded,  whenever  the  means  of  judicial  investigation  are  still  imper- 
fect and  inadequate  to  the  attainment  of  truth  (n),  or  in  a  subse- 
quent stage  of  society,  when,  for  purposes   foreign  to  justice,  false 

accusers  are  listened  to  and  encouraged  (o) 
[  *xv  ]  *A  man  may  also  be  placed  in  a  state   of  legal  jeop- 

ardy by  means  of  slander  which  affects  him  indirectly 
in  a  judicial  proceeding.  This  may  occur  in  all  cases  where  the 
law  admits  evidence  of  a  man's  general  good  character  (^j),  for  the 
purpose  of  rebutting  the  presumption  of  guilt  on  a  criminal  charge ; 
for,  by  the  propagation  of  calumnious  reports,  he  may  be  unjustly 
deprived   of  the   advantage  which  the  evidence  of  good  character 

son,  yet,  by  the  laws  of  many  nations,  it  has  been  punished  capitally.  By  the  law  of 
the  Twelve  Tables,  a  false  witness  was  thrown  from  the  Tarpeian  rock,  sifalsum 
iestimonium  dicassit  saxo  dejicitor,  Gell.  xx.  Afterwards  the  punishment  was  arbi- 
trary ;  1.  16.  D.  de  testibus, — Sent.  v.  2.5.  s.  2.  Except  in  war,  where  a  false  wit- 
ness was  beaten  to  death  with  sticks  by  his  fellow-soldiers.  Polyb.  vi.  35.  The 
Libellus  Famosus,  or  false  and  anonymous  charge  of  a  capital  crime,  was,  by  many 
later  laws,  punished  capitally. 

(n)  It  is  the  ordinary  policy  of  a  barbarous  and  illiterate  people,  to  substitute 
artificial  and  arbitrary  proofs  of  innocence  or  guilt  in  the  place  of  careful  and  rational 
investigation.  Hence  the  superstitious  modes  of  trial  by  the  Saxon  ordeal  and  Nor- 
man combat,  and  the  doctrine  of  compurgation,  or  law  wager,  which,  even  at  this 
day,  is  permitted  by  the  law  of  England. 

(o)  Witness  the  legal  assassinations  which  were  effected  among  the  Romans, 
when  "  ut  quis  districtior  accusator  velut  sacrosanetus  erat."  And  also  by  means  of 
the  Libellus  Eamosus,  or  secret  charge  of  a  capital  crime.  So  fatal  had  such  accu- 
sations become,  that  the  authors  of  them  were  justly  made  amenable  to  capital  pun- 
ishments by  numerous  provisions. 

(p)  As  the  law  of  England  does.  Formerly,  common  fame  that  a  man  had  been 
guilty  of  an  offence,  was  sufficient  ground,  by  the  law  of  England,  for  putting  him 
on  his  trial,  without  any  other  preliminary  inquiry.  Among  the  Eomans,  witnesses 
to  character  were  called  laudatores,  and  if  the  accused  could  not  produce  at  least 
ten  of  these,  it  was  deemed  better  to  produce  none. — Q,uam  illium  quasi  legitimum 
numerum  consuetudinis  uon  explore. — Cic.  Verr.  v.  22,  and  see  Cic.  pro  Balb,  18. 
Cleunt.  69.  In  the  rude  and  barbarous  times  of  our  Saxon  ancestors,  where  compur- 
gation was  a  species  of  trial,  and  when  an  accused  party  was  deemed  to  be  innocent 
without  further  inquiry,  because  a  specified  number  of  witnesses  swore  that  they  be- 
lieved him  to  be  so,  character  and  reputation,  if  respect  was  really  paid  to  such  oaths 
must  have  been  of  infinite  importance. 


PRELIMINARY  DISCOURSE.  xv 

would  otherwise  have  afforded.  The  destruction  of  character,  in 
such  a  case,  would  not  only  affect  a  party  directly,  by  depriving 
him  of  that  evidence  which  he  might  have  used  positively  to  his 
advantage,  but  negatively  and  indirectly  also,  by  raising  the  infer- 
ence,  that  he  is  a  man  of  absolutely  bad  character. 

To  this  extent  may  an  individual  be  injured  by  false  charges, 
through  the  medium  of  judicial  proceedings.  In  the  next 
place,  although  the  value  of  character,  and  *its  intimate  [  xvi  ] 
connection  with  every  benefit  and  advantage  which  social 
life  can  confer  be  obvious,  yet,  in  order  to  appreciate  fully  the  ex- 
tent of  the  evil  which  may  result  from  privation  of  character  and  the 
nature  of  the  remedy  which  ought  to  be  awarded  in  respect  of  such 
an  injury,  a  few  observations  may  not  be  wholly  superfluous. 

A  state  of  civil  society  is  in  effect  one  great  system  of  mutual 
aid,  trust,  and  confidence  (5),  by  which  mankind  are  bound  to- 
gether. Each  individual,  whatever  be  his  rank,  his  talents,  or  hi3 
wealth,  considered  as  a  single  and  isolated  being,  is  weak  and  help- 
less, each  must  depend  on  others,  not  only  for  the  comforts,  but  even 
for  the  necessaries  of  life,  for  security  of  person  and  of  property. 
He  must  trust  to  his  lawyer  for  the  preservation  of  his  pro- 
perty when  it  is  claimed  by  an  *adversary ;  to  his  phy-  [  *xvii  ] 
sician  in  time  of  sickness  ;  to  his  servants  for  the  faith- 
ful discharge  of  the  ordinary  though  meaner  duties  of  life.  But 
the  reposing  of  confidence  implies  the  selection  of  agents  competent 

(q)  The  first  principle  of  civil  association,  the  muiuum  beneficiorum  commercium,  is 
described  by  Seneca,  with  such  beauty  and  simplicity  that  little  excuse  is  requisite 
for  transcribing  the  passage  : — 

Quo  alio  tuti  sumus  quam  quod  mutuis  juvamur  officiis  1  hoc  uno  instructior  vita 
contraque  incursiones  subitas  munitior  est  beneficiorum  commercio.  Fac  nos  sin- 
gulos  quid  sumus?  prseda  animalium  et  victimoe  ac  bellissimus  et  fiicillimus  sanguis. 
Quoniam  ceeteris  animalibus  in  tutelam  sui  satis  virium  est:  quaecunque  vaga  nas- 
cuniur  &  actura  vitam  segregem  armata  sunt.  Hominem  imbecillitas  cingit,  non 
unguium  vis  non  dentium  lerribilem  cseteris  fecit,  nudum  et  infirmum  societas  munit. 
Duas  res  dedit  qua  ilium  obnoxium  caeteris  validissimum  facerent  rationem  e:.t  soci- 
etatem.  Itaque  qui  par  esse  nuUi  poterat  si  seduceretur  rerum  potitur.  Societas  illi 
dominium  omnium  animalium  dedit :  societas  terris  genitum  in  aliense  naturae  trans- 
misit  iraperium  &,  dominari  etiam  in  mare  jussit.  Htec  morborum  impetus  arcuit, 
senectuli  adrainicula  prospexit,  solatia  contra  dolores  dedit.  Hsc  fortes  nos  facil 
quod  licet  contra  forlunam  advocare.— Hanc  societatem  toUe  et  unitatem  generis 
humani  qua  vita  sustinetur  scindes.     Senec.  de  benef.  1.  4.  c.  18. 

Vol.  I.  9 


xvii  t>IlELIMmARY  DISCOURSE. 

to  the  discharge,  as  well  of  the  higher  and  more,  important  duties  of 
a  public  nature,  as  of  the  ordinary  and  private  duties  of  society. 
With  the  exception  of  those  high  public  offices,  which,  on  grounds 
of  civil  policy,  arc,  by  the  constitution  of  the  particular  state,  de- 
creed to  be  hereditary,  the  appointment  must  be  matter  of  selection 
and  choice  vested  in  the  government,  or  in  the  people,  or  in  indi- 
viduals specially  delegated  to  the  trust,  and  every  member  of  soci- 
ety must  be  left  to  exercise  his  own  discretion  in  selecting  those 
whom  he  may  choose  to  trust  in  the  varied  connections  of  life.  Now 
it  is  obvious,  that  it  seldom  can  happen  that  the  power  of  selection 
can  be  properly  and  discreetly  exercised  on  the  mere  personal  know- 
ledge of  any  single  individual,  founded  on  his  own  actual  experi- 
ence. It  is  constantly  necessary  to  place  reliance  on  the  knowledge 
and  information  of  others,  not  only  in  those  instances  where  choice 
is  to  be  made  of  public  functionaries,  but  even  in  those  ordinary  and 
daily  instances,  where  every  man  reposes  trust  and  confidence  in 
others,  with  a  view  to  his  own  interests  and  private  concerns. 
Whether  a  house  is  to  be  built,  or  a  surgical  operation  performed, 
a  suit  to  be  commenced,  or  a  farm  to  be  purchased,  it  rarely  hap- 
pens that  the  party  interested  in  selecting  his  architect,  his  surgeon, 
his  solicitor,  or  surveyor,  does  not  ])lace  some  reliance  on  inform- 
ation, which  he  derives  from  others,  as  to  the  skill  or  integrity  of 

the  agent  whom  he  elects  to  employ. 
[  *xviii  ]  *Again,  every  one  who  trusts  another,  usually  possesses 
both  the  inclination  and  the  means  of  forming  some  esti- 
mate of  his  abilities  and  principles ;  and  though  the  opportunities  of 
each  observer  may  be  limited,  yet  if  all  who  know  the  party  so 
trusted  concur  in  forming  the  same  general  conclusion  on  the  sub- 
ject ;  if  they  all  agree  in  stating  that  he  is  skilful,  diligent,  faithful, 
and  honorable  in  his  dealings  ;  that  general  coincidence  in  opinion 
of  many  possessed  of  the  means  of  judging,  affords  a  reasonable 
degree  of  probability  in  favour  of  the  correctness  of  their  conclu- 
sion. Hence  it  is,  that  where  a  trust  is  to  be  reposed,  and  a  selec- 
tion made,  the  party  who  is  to  exercise  it  may  fairly  rely,  not  only 
on  the  particular  and  actual  experience  of  other  individuals,  but 
also  on  general  character  derived  from  the  united  experience  of 
others. 

Such,  then,  being  the    close  and   intimate   connection   between 


PRELIMINARY  DISCOURSE.  xviii 

character  and  temporal  preferment  or  acquirements,  two  circum- 
stances are  to  be  noticed,  for  the  purpose  of  showing  how  pecuharly 
susceptible  character  and  reputation  are  of  injury,  and  how  easily 
confidence  in  an  individual  is  destroyed  or  intercepted  by  slight 
causes  ;  and,  consequently,  of  inferring  the  general  necessity,  not 
only  of  protecting  reputation  by  municipal  provisions,  but  also  of 
devising  such  as  are  adequate  to  the  exigency  of  the  occasion. 

In  the  first  place,  it  is  to  be  remarked,  that  good  character  is  but 
presumptive  evidence  of  good  principles  ;  whilst,  on  the  other  hand, 
the  commission  of  a  single  dishonourable  or  unworthy  action  is  de 
monstrative  of  bad  ones.     Hence  it  is  that  the  report  of 
a  single  act  of  *delinquency,  if  credit  be  given  to  it,  at     [  'xix  ] 
once  is  fatal  to  the  most  exalted  reputation. 

The  character  acquired  by  an  exterior  of  probity  exhibited  to  the 
world  for  half  a  century,  necessarily  yields  at  once  to  the  proof 
that  the  party  is  at  last  guilty  of  a  single  act  of  dishonesty. 

In  the  next  place,  as  far  as  reputation  and  confidence  in  character 
are  concerned,  slight  suspicion  is  usually  attended  with  the  same 
evil  consequences,  with  belief,  founded  on  actual  proof;  and  suspic- 
ion is  thus  equivalent  to  proof.  For  where  even  a  slight  suspicion, 
as  to  a  man's  conduct  or  principles,  is  once  excited,  he  who  would 
otherwise  have  reposed  confidence,  must  either  proceed  to  do  so, 
notwithstanding  the  suspicion  which  prevails,  or  remove  all  doubt  by 
inquiry  and  investigation,  or  withhold  his  confidence  altogether. 
To  trust  blindly,  and  without  inquiry,  as  to  character,  would  usually 
be  deemed  rash  and  imprudent ;  but  to  do  so,  after  an  actual  though 
obscure  warning,  would  be  an  act  of  folly  and  imprudent  weakness, 
where  a  man's  own  interests  were  concerned,  and  of  real  injustice, 
where  the  interests  of  others  were  involved.  To  inquire  and  investi- 
gate would  usually  be  a  work  of  labour,  trouble,  and  diflSculty,  in 
which  few  care  to  engage  ;  and  thus  it  would  seldom  happen  that 
the  party  whose  duty  or  interest  it  was  to  make  the  selection,  would 
not  adopt  the  third  alternative,  and  withhold  his  confidence  from  one 
to  whom  a  suspicion,  however  slight,  attached,  to  repose  it  in  an- 
other whose  character  was  untainted.  If  one,  about  to  deposit  a 
large  sum  of  money  in  the  hands  of  a  banker,  were  casually  to  hear 
that  he  had  committed  an  act  of  bankruptcy,  what  course 
*  would  be  the  natural  consequence  ?     To  trust  without     [  *xx   ] 


XX 


PRELIMINARY  DISCOURSE. 


inquiry,  would  be  absolute   folly  ;  to   investigate  the  truth   of  the 
report   would,  at   all   events,   be   irksome    and   troublesome,   and, 
after  all,  might  be  unsatisfactory ;  the  natural  result  would  be,  that 
he  would  choose  to  employ  some  other  depositary,  who  was  placed 
beyond  the  reach  of  all   doubt  and  suspicion.     But  as  one  acted, 
so  would  all,  and  thus  a  false  alarm,  originating  in  private  malice, 
might  be  adequate  to  the  destruction  of  credit  and  consequent  ruin. 
Again,  although  the  municipal  law  of  the  land  may  afford  secu- 
rity of  person  and  of  property  to  all,  yet  is  there  a  large  and  esti- 
mable portion  of  good,  which  arises  from  a  state  of  civil  society,  a 
participation  in  which  cannot  be  positively  conferred  or  secured  by 
any  laws,  and  the  enjoyment  of  which  cannot  be  protected,  except 
negatively  and  collaterally,  by  the  restraining  such  injuries  to  char- 
acter as  tend  to  destroy  it.     That  constant  reciprocation  of  good 
offices,  of  mutual  aid  and  friendship,  which  constitutes  the  great 
charm  and  blessing  of  social  hfe,  and  which  depends  on  the  exercise 
and  influence  of  the  ordinary  feehngs  of  kindness  and  benevolence, 
can  be  but  remotely  influenced  by  any  municipal  regulations.     But 
as  no  man  of  honour  or  reputation  would  wiUingly  connect  himself 
with  base  and  unworthy  associates,  imputations  on  a  man's  conduct 
or  principles  necessarily  tend  immediately  to   debase  and  degrade 
him  from  the  situation  he  holds  in  the  favour  and  esteem  of  others. 
To  exalt  a  man's  reputation  in  society  is    to  ensure  to  him  the 
respect  and  afiection  of  mankind,  and  to  lay  open   the 
[  *xxi  ]     avenues  to  prosperity  and  honour ;  to  degrade  *and  dis- 
grace him  is  to  banish  him  to  a  state  of  wretched  soli- 
tude  and  destitution  (r),  to  render  him  the  very  scorn  of  men,  the 
out-cast  of  the  people, — a  condition  lower  than  that  of  the  brute 
which  enjoys  its  mere  animal  life,  unembittered  with  the  painful 
sense  of  degradation,  dishonour  and  contempt. 

Now,  although  municipal  laws  cannot  properly  interfere  to  direct, 
or  control  men  in  their  ordinary  intercourse  and  mutual  transactions} 
but  leaves  each  at  liberty  to  exercise  his  own  discretion,  and,  con- 
sequently, although  such  laws  cannot,  by  any  positive  and  direct 
interposition,  secure  to  an  individual  the  advantages,  benefits,  and 
comforts,  to  which  his  conduct  in  society  may  justly  entitle  him,  yet 

(r)  Nullo  iaterimente  sed  cunctis  aversantibus  et  commercia  etiam  sermonis  ne- 
gantibns. 


PRELIMINARY  DISCOURSE.  xxi 

the  law  not  only  may,  but  ought  to  interfere,  to  protect  him  from 
unjust  and  malevolent  aspersions  which  deprive  him  of  the  benefits 
and  advantages  in  which,  as  a  member  of  the  community,  he  ought 
to  participate. 

The  law  cannot  compel  individuals  to  consult  the  most  skilful  phy- 
sician ;  it  must  be  left  to  a  patron  to  select,  in  his  discretion,  the 
most  worthy  object  for  bestowing  preferment ;  but,  though  the  law 
cannot,  in  any  such  instances,  ensure  success  to  the  most  deserving, 
but  must  leave  it  to  depend  on  the  discretion  and  consciences  of  in- 
dividuals, yet  it  may,  on  the  soundest  and  most  obvious  principles  of 
justice,  interfere  to  prohibit  false  and  injurious  charges  of  ignorance, 
dishonesty,  or  profligacy,  which  tend  to  exclude  such 
parties  *from  enjoying  that  degree  of  success  to  which  [  *xxii  ] 
their  merits  justly  entitle  them. 

The  right,  then,  of  every  man  to  the  character  and  reputation 
which  his  conduct  deserves,  stands  on  the  same  footing  with  his  right 
to  the  enjoyment  of  his  life,  liberty,  health,  property,  and  all  the 
comforts  and  advantages  \vhich  appertain  to  a  state  of  civil  society, 
inasmuch  as  security  to  character  and  reputation  are  indispensably 
essential  to  the  enjoyment  of  every  other  right  and  privilege  inci- 
dent to  such  a  state. 

Assuming,  then,  that  restraint  is  expedient,  with  a  view  to  the 
protection  of  the  private  interests  of  individuals,  what  is  the  proper 
mode  and  measure  and  extent  of  such  restraint  ? 

Prohibitory  restraints  must  be  either  preventive,  remedial,  or  penal. 
The  very  nature  of  the  injury  excludes,  to  a  great  extent,  all 
merely  preventive -provisions.  By  the  law  of  nature  and  reason,  a 
man  is  justified  in  repelling  attempts  at  personal  violence,  by  oppos- 
ing force  to  force.  Injuries  to  character  do  not  admit  of  such  re- 
straints, they  are  usually  inflicted  in  the  absence  of  the  party  whose 
character  is  defamed.  It  is  true,  that  the  press  might  be  subjected 
to  censorial  restraints,  which  could  not  be  applied  to  oral  or  written 
calumnies ;  the  policy,  however,  of  this  species  of  restraint,  as  well 
as  the  principles  of  penal  coercion,  will  be  more  conveniently  con- 
sidered hereafter. 

The  most  obvious  and  practicable  mode,  indeed  the  only  one 
which  merits  consideration,  consists  in  the  awarding  a  pecuniary 
recompense  in  damages.     It  may,  however,  be   proper  to  remark, 


xxiii  PRELIMINARY  DISCOURSE. 

[  *xxiu  ]  that,  although  the  *very  nature  of  the  injury  excludes 
a  remedy  by  restitution,  yet,  that  attempts  have  been 
made  among  some  modern  nations,  to  award  a  proximate  kind 
of  remedy,  by  compelling  the  calumniator  to  pronounce  di.  palinode, 
or  recantation,  of  his  slander.  It  may  suffice  to  remark,  that  this  is 
at  best  a  remedy  of  a  very  doubtful  and  unsatisfactory  description. 

The  sincerity  of  an  extorted  recantation  must  necessarily  be 
stamped  with  suspicion.  It  is  obvious,  that  the  degree  of  credit 
which  it  deserved  would  bear  an  inverse  proportion  to  the  fine  to  be 
paid  or  punishment  to  be  suffered,  in  the  alternative  of  the  party's 
refusing  to  pronounce  the  required  palinode.  If  A.  being  adjudged 
either  to  acknowledge  that  B.  was  not  a  rogue,  or  to  pay  £100, 
were  to  elect  the  palinode,  the  only  safe  inference  would  be  that  A., 
for  some  reason  or  other,  had  rather  admit  that  B.  was  not  a  rogue 
than  pay  the  money. 

What  then  are  the  proper  limits  to  the  remedial  action  for  dam- 
ages ?  in  other  words,  what  circumstances  at  the  least  ought  to  con- 
cur to  entitle  the  party  to  the  remedy,  and  under  what  other  cir- 
cumstances ought  the  remedy   to  cease  notwithstanding  that  con- 


currence 


The  circumstances  on  which  the  title  to  a  remedy  must  depend, 
are  obviously.  1,  the  injurious  quality  or  consequences  of  the  cal- 
umny ;  2,  the  mode  or  extent  of  publication  ;  3,  the  motive  and  in- 
tention of  the  party  in  publishing ;  or  4thly,  collateral  circumstan- 
ces connected  with  the  publication. 

In  the  first  place,  then,  as  far  as  regards  the  nature,  consequences 
and  quality  of  the  defamatory  matter  published,  the 
[  *xxiv  ]  *very  notion  of  compensation  implies,  that  some  loss  or 
damage  has  been  occasioned. 

It  were  almost  nugatory  to  remark,  that  to  fix  any  precise  and 
settled  sum  or  value,  as  the  amount  of  the  fine  or  damages  to  be 
paid  by  an  offender  of  this  description,  is  the  work  of  early  and  in- 
experienced legislators  (s),  and  that  the  recompense  ought  always 

(s)  The  laws  of  Solon  punished  calumniators  by  an  arbitrary  fine.  Pettit  in  Leg. 
Attic.  By  the  law  of  the  Twelve  Tables,  the  injuria  in  general  subjected  the  of- 
fender to  pay  a  pecuniary  fine  or  compensation.  "  Si  quis  alteri  injuriam  faxit, 
XXV.  ^ris  poena  sunto."  The  folly  and  absurdity  of  making  either  a  fine  or 
compensation  fixed  and  arbitrary,  was  well  illustrated  in  the  instance  of  Veratius,  or 


PRELIMINARY  DISCOURSE.  xxiv 

to  be  apportioned  to  the  actual  extent  of  an  injury  which  is  so  un- 
certain and  various  in  its  consequences. 

The  remedy  then  is  applicable,  and  ought,  in  point  of  natural 
justice,  to  be  applied,  unless  there  be  some  extrinsic  reason  to  tlie 
contrary,  in  all  cases  where  a  party  has  suffered  any  actual  loss  or 
detriment  in  his  person  or  property,  from  a  Nvilful  act  of  slander. 
And  this  principle  extends  not  merely  to  all  cases  where 
the  *party  has  been  deprived  of  some  actual  legal  right,  [  *xxv  ] 
but  to  all  others  where  any  social  benefit  has  been  inter- 
cepted which  he  would  otherwise  have  enjoyed,  although  he  could 
not  have  claimed  it  as  an  absolute  and  vested  legal  right.  Thus  it 
extends  not  only  to  the  case  where  a  man,  by  malicious  slander, 
suffers  a  temporary  privation  of  his  personal  liberty,  to  which  he  has 
an  absolute  legal  right,  but  also  that  of  a  clergyman  whose  present- 
ation to  a  benefice  has  been  hindered  by  such  means. 

For  although  the  law  cannot  interfere  for  the  purpose  of  enforc- 
ing the  moral  obligation  on  the  part  of  the  patron,  to  prefer  the 
most  deserving  candidate,  but  necessarily  leaves  the  choice  to  his 
conscience  and  discretion,  yet  it  may  properly  interfere  for  the  pro- 
tection of  character,  and  to  compel  a  compensation  in  respect  of  a 
loss  or  damage,  immediately  consequential  on  a  wilful  privation  of 
character. 

The  party  defamed  had  no  legal  title  or  perfect  moral  right  to  be 
preferred,  but  he  had,  in  point  of  natural  justice,  a  right  to  the  cha- 
racter which  his  conduct  deserved,  and  consequently  a  right  to  com- 
pensation for  the  mischief  occasioned  by  one  who  had  wrongfully 
defamed  him.  This  general  principle  obviously  embraces  every  in- 
stance where  the  slander  occasions  any  loss  whatsoever,  capable  of 
pecuniary  admeasurement. 

Neratius,  a  rich  Roman,  who  took  great  delight  ia  walking  through  the  streets  of 
Rome,  striking  all  those  whom  he  met,  according  to  his  fancy  and  caprice  ;  he  was 
followed  by  a  servant  loaded  with  money  for  the  purpose  of  immediately  paying  the 
appointed  fine  to  those  whom  he  had  thus  insulted.  Gell.  Noct.  Att.  XX.  1.  It 
may  fairly  be  presumed,  that  he  was  a  strong  man  as  well  as  a  rich  one,  or  that  the 
fine  and  blows  would  speedily  be  returned,  the  latter  with  interest,  and  that  he 
would  literally  be  repaid  in  his  own  coin.  The  absurdity  of  annexing  an  invariable 
compensation  to  a  variable  injury,  naturally  occasioned  a  more  equitable  law.  Prae- 
tores  postea  banc  pcenam  abolescere  et  relinqui  censuerunt  injuriis  qui  sestumandis 
recuperatores  se  daturos  edixerunt.  Gell.  Noc.  Att.  XX.  1.  Heinecc.  Ant.  Rom. 
Ad.  Inst.  Lib  4.  tit.  a.  5. 


XXV  PRELIMINARY  DISCOURSE. 

But,  in  the  next  place,  ought  the  remedy  to  be  confined  to  those 
instances,  where  it  can  be  shown  that  some  actual  specific  loss  or 
damage  has  been  sustained  in  consequence  of  the  calumny ;  or,  if 

not,  within  what  limits  ought  the  remedy  to  be  extended  ? 
[  *xxvi  ]         *It  would  in  the  first  place,  be  highly  inconvenient  and 

inexpedient  to  make  actual  damage  essential  to  the  ac- 
tion, without  regard  to  the  obvious  and  immediate  tendency  of  the 
defamation  to  occasion  great,  it  may  be  irreparable  injury.  In 
ordinary  instances  it  may  be  sufficient  that  the  law  should  provide 
a  remedy  for  a  mischief  already  suffered,  without  presuming  or  anti- 
cipating any  future  evil  consequence.  Be  this  as  it  may,  the  pecu- 
liar nature  and  tendency  of  an  injury  to  reputation  renders  it  con- 
venient, if  not  essential,  that,  in  some  instances  at  least,  a  remedy 
should  be  given  in  respect  of  calumnious  imputations  upon  character 
though  no  actual  consequential  damage  can  be  proved.  That  is,  it 
is  desirable,  if  not  necessary,  under  certain  limits,  to  constitute  the 
defamation  a  substantive  and  positive  injury,  independently  of  the 
proof  of  consequential  damage. 

Were  it  otherwise,  if  actual  loss  were  invariably  essential  to  the 
remedy,  the  damage  occasioned  would  frequently  be  irreparable. 
One  of  the  peculiar  and  striking  characteristics  of  this  species  of 
injury  is  the  difficulty,  or  rather  the  impossibility,  of  estimating  its 
noxious  consequences,  and  adducing  proof  of  actual  mischief  during 
its  ruinous  and  destructive  progress. 

If  a  physician,  attorney,  or  merchant,  could  not  obtain  a  remedy 
in  respect  of  calumnious  reflections  upon  his  character  or  credit, 
until  he  could  adduce  specific  instances  of  losses  occasioned  by  such 
attacks,  he  might  be  efiectually  ruined  before  his  proof  was  complete. 
Slander  tending  to  the  disinherison  of  the  party  calumniated,  affords 
a  strong  illustration  of  this  doctrine.  If  it  were  to  be  maliciously 
suggested  to  the  proprietor  of  a  large  family  estate, 
[  *xxvii  ]  that  his  heir  apparent  was  illegitimate,  *such  a  report,  if 
believed,  might  strongly  tend  to  induce  the  owner  to  de- 
vise his  property  to  another  branch  of  the  family  of  undoubted  le- 
gitimacy. Now  if  the  heir  apparent  were  not  permitted  to  com- 
plain of  the  wrong  done  him,  until  the  injury  had  been  consummated 
and  completed  by  his  disinherison,  the  remedy  would  frequently  be 
afforded  in  vain  ;  it   would  be  most  difficult  to  prove  that  he  had 


PRELIMINARY  DISCOURSE.  xxv'ii 

been  disinherited  in  consequence  of  the  slander,  and  even  if  he 
could  prove  the  fact,  the  author  of  the  mischief  might  be  unable  to 
yield  compensation,  and  thus  a  serious  and  cruel  injury  would  be 
left  without  a  remedy.  On  the  other  hand,  by  regarding  the  slan- 
der as  a  substantive  injury,  the  party  aggrieved  is  entitled  to  arrest 
the  progress  of  the  mischief  in  limine  ;  by  means  of  an  action 
against  the  author  or  publisher  of  the  scandal,  the  challenges  him  to 
produce  formal  proof  of  his  charges ;  he  establishes  their  fiilsity,  if 
they  be  false,  and  obtains  reasonable  damages  for  the  trouble, 
anxiety,  expense,  and  danger  to  which  he  has  wantonly  been  exposed, 
and  the  mischievous  effects  which  might  otherwise  have  accrued 
from  the  slander  are  averted. 

Is  then  the  remedy  to  be  extended  indefinitely,  though  no  special 
damage  can  be  proved,  to  every  species  and  degree  of  defamation 
which  tends  to  the  occasioning  of  some  loss  or  damage ;  and  if  not, 
where  is  the  limit  to  be  assigned  ? 

To  extend  the  remedy  indefinitely  to  all  communications  tending 
to  produce  damage,  and  a  fortiori  to  award  a  pecuniary  recompense 
in  respect  of  such  contumelious  and  insulting  language  as  was  not 
likely  to  produce  temporal  damage,  though  it  tended  to 
hurt  the  *pride  or  delicacy  of  the  offended  party,  Avould,  [  *xxviii  ] 
it  seems,  be  highly  inexpedient. 

For,  in  the  first  place,  as  it  is  difficult  to  say  that  any  undeserved 
imputation  on  a  man's  moral  conduct,  character,  or  temper,  does  not 
tend  to  dislodge  him  from  his  state  and  condition  in  society,  and 
thus  remotely  at  least  to  deprive  him  of  temporal  comforts  and  ad- 
vantages, it  is  plain  that  so  wide  an  application  of  the  principle  would 
afford  far  too  large  a  scope  for  vexatious  litigation,  and  the  ordinary 
intercourse  of  society  would  be  impeded  and  fettered  by  the  appre- 
hension of  vexatious  and  harrassing  suits  for  trifling  causes. 

Abusive,  insulting,  and  unmannerly  language,  which  affect  not  a 
man's  liberty  or  estate,  are  of  too  indefinite  and  uncertain  a  char- 
acter to  be  the  subject  of  an  action  for  pecuniary  damages  (t}. 
Such  injuries,  or  rather  affronts  to  the  feelings,  are  as  incapable  of 
definition  as  of  admeasurement.  They  depend  on  the  rank,  situa- 
tion, and  condition  of  the  parties,  and  on  circumstances  which  may 

{/)  Contumelia  minor  est  injuria  quam  queri  magis  quatn  exsequi  possumus; 
qnam  leges  quoqae  nulla  dignam  vindicta  putaverunt 

Vol.  I.  10 


xxviii  PRELIMINARY  DISCOURSE. 

be  felt  but  not  defined  ;  they  may  depend  on  the  tone  of  voice,  the 
gestures,  even  looks  by  "which  they  are  accompanied,  and  in  some 
instances,  silence  may   be  more   contemptuous  and  insulting  than 

direct  expressions  (u). 
[  *xxix  ]  *It  seems  then  that  it  is  expedient,  on  principles  of 
general  policy  and  convenience,  that  the  law  should  de- 
fine, by  sufficient  liaaits,  in  what  instances  simple  defamation,  unac- 
companied by  special  damage,  should  constitute  a  substantive  ground 
of  action.  It  is  obvious  that  the  application  of  these  principles,  in 
particular  instances,  must  in  a  great  measure  depend  on  the  state 
and  circumstances,  manners  and  habits,  of  the  society  for  whose 
use  such  rules  are  to  be  applied. 

There  is,  however,  one  consideration  of  external  policy  v^hich  al- 
ways operates  in  favour  of  the  extension  of  the  action.  Experience 
has  fully  proved  that  to  refuse,  or  even  to  restrict  the  civil  remedy 
■within  too  narrow  limits,  is  sure  to  occasion  personal  conflicts  and 
bloodshed  ;  the  ordinary  transition  is  a  verbis  ad  verbera,  men  being 
always  apt  to  carve  out  their  own  remedy  in  such  cases  where  it  is 
denied  by  the  law.  And  though  this  consideration  operates  princi- 
pally cs  an  argument  for  subjecting  calumniators  to  penal  censure, 
inasmuch  as  such  insults  tend  immediately  to  produce  public  mis- 
chief and  disorder,  yet  is  this  consequence  by  no  means  to  be  over- 
looked in  relation  to  the  civil  remedy ;  for  no  provi- 
[  *x.xx  ]  sion  can  more  surely  tend  to  *restrain  individuals  from 
avenging  injuries  to  their  reputation  than  to  have  the 
means  aiforded,not  merely  of  obtaining  redress  and  compensation, 
in  the  shape  of  damages,  which  is  frequently  but  a  secondary  con- 
sideration with  an  injured  party,  but  also,  which  is  usually  of  in- 

(m)  The  Roman  law  which  made  the  personal  insult  or  contumely  the  basis  of  the 
action,  civil  as  well  as  criminal,  was  exceedingly  vague  and  indefinite .;  see  the  ob- 
serviiticns  below,  p.  xxxi.  By  the  law  of  England  no  action  lies  in  respect  of  the 
speaking  of  mere  general  abusive  words  which  are  not  followed  by  special  damage, 
neither  are  such  words  indictable,  unless  in  some  special  cases,  as  where  they 
amount  to  a  challenge,  or  afi'ect  a  court  or  magistrate  in  the  execution  of  public  jus- 
tice, or  are  applied  to  the  magnates  of  the  realm.  The  only  mode  of  proceeding  by 
the  law  of  England,  in  respect  of  abusive,  and  unmannerly  and  insulting  language 
in  general,  is  by  causing  the  offender  to  be  bound  over  to  the  good  behaviour.  The 
ancient  restraints  on  scolds,  the  ducking  stool  and  the  bridle,  whether  it  be  that  the 
one  eex  is  grown  more  gallant  or  the  other  less  virulent,  have  long  fallen  into  disuse. 


PRELIMINARY  DISCOURSE.  xxx 

finitely  greater  importance,  of  vindicating  their  characters,  by 
openly  challenging  their  accusers  to  proof  of  their  assertions.  This 
mode  cf  vindication,  which  for  reasons  which  will  afterwards  be  ad- 
verted to,  cannot  be  permitted  when  the  proceeding  is  purely  of  a 
crimyial  nature,  necessarily  occurs  where  the  very  essence  of  the 
injury  consisis  in  the  falsitt/  of  the  accusation. 

It  is  further  to  be  observed,  that  in  this,  as  well  as  other  instan- 
ces, where  a  general  rule  in  ths  affirmative  or  negative  cannot  be 
adopted,  but  where  it  becomes  necessary  to  define  the  legal  bound- 
aries, it  is  always  more  important,  as  a  matter  of  legal  policy,  to 
adopt  plain  and  general  distinctions,  for  the  sake  of  clearness  and 
notoriety,  although  some  other  consideration  of  policy  should  be 
partially  sacrificed,  than  to  draw  a  line  more  nearly  adjusted  and 
suited  to  conflicting  principles,  but  of  greater  intricacy,  obscurity, 
and  dlfficul'cy.  For  it  is  obvious  that  the  quantity  of  mischief  and 
inconvenience  which  may  result  from  adopting  an  indistinct  rule,  or 
ill  defined  boundary,  may  far  exceed  any  evil  which  could  result 
from  the  partial (v)  sacrifice. 

{v)  The  law  of  England  defines,  with  much  greater  distinctness  than  is  usually 
found  in  other  codes,  the  limits  of  the  civil  action  for  oral  slander  in  the  absence  of 
special  damage.  1st.  The  remedy  is  afforded  in  respect  of  a  charge  of  an  offence 
visitable  with  corporeal  punishment.  2ndly.  An  imputation  of  labouring  under 
some  particular  infectious  disorders.  3rdly.  Imputations  which  affect  a  party  in  his 
office,  profession,  trade,  or  means  of  livelihood  ;  or,  4thly.  Aspersions  which  tend 
to  his  disinheri!!on.  The  law  is  less  definite  in  two  instances.  1st.  In  respect  of 
slander  against  the  magnates  of  the  realm,  or  scandalum  magnatum,  where  the  rem- 
edy is  given  by  several  ancient  statutes,  in  respect  of  calumnies  against  the  character 
of  grandees  ;  and,  2ndly,  in  the  instance  of  written  slander  or  libel,  for,  contrary  to 
the  principles  of  common  law,  general  insulting  and  contumelious  expressions  are 
the  subject  of  an  action,  when  the  communication  is  in  writing,  though  the  same 
words  would  not  have  been  actionable,  had  they  been  merely  spoken.  This  anoma- 
lous appendage  to  the  common  law  principle,  which  regarded  not  the  contumely  and 
insult  so  much  as  the  loss  to  the  parties'  estate  and  means,  seems  to  be  plainly  attrib- 
utable to  the  doctrines  of  the  civil  law,  which  were  first  imported  into  the  Star 
Chamber  practice,  in  cases  of  libel,  and  after  the  abolition  of  that  court,  were,  in 
part  at  least,  recognized  by  the  courts  of  common  law  ;  and  by  this  means  the  ac- 
tion for  written  slander  is  of  very  indefinite  extent.     See  vol.  1,  p.  148. 

The  ground  of  the  action,  under  the  ancient  Koman  and  civil  law,  was  the  injuria, 
the  personal  insult  or  contumely  offered  to  the  party  defamed ;  and  hence  it  was 
that  the  limits  of  the  action,  according  to  the  Roman  law,  were  very  indefinite  and 
indistinct.     Ait  prsetor  qui  adversus  bonos  m<yres,  convicium  cui  fecisse,  cujusve  operft 


XXXI 


PRELIMINARY  DISCOURSE. 


[  *xxxi  ]         *Next,  as  to  the  quality  of  the  matter  published. 
Assuming,  then,  that  the  defamatory  matter  complained 

factum  esse  clicitur  quod  adversus  bonos  mores  convicium  fiat  in  cum  judicium  dabo, 
D.  1.  47,  10. 

Again,  ait  prEEtor  ne  quid  iofamandi  causa  fiat,  si  quis  adversus  ea  fecerit  prout 
quneque  res  erit  animadvertam. 

Again,  Gencraliter,  vetuit  praetor  quid  ad  infamiam  alicujus  fieri.  Proinde  quod- 
cumque  qnU  fecerit  vel  dixen't  ut  alium  infamet  erit  (ictio  injuriaram. 

Some  curious  instances  are  given  in  tiie  digest  of  the  application  of  these  princi- 
ples of  the  Roman  law.  Item  si  quis  pignus  proscripserit  venditurus  tanquam  a  rae 
acceperit  infamandi  mei  causa.  Si  quis  non  debitorem,  quasi  debilorem  appellaverit 
injurice  faciendae  causa,  injuriaram  tenetur. 

Another  illustration  presents  a  very  singular  mode  of  defamation,  which  arose  out 
of  the  practice  which  prevailed  at  Rome,  for  the  relations  of  an  accused  party  to 
dress  in  sordid  habits,  and  allow  their  beards  to  grow,  in  order  to  excite  compassion 
and  favour  towards  the  accused.  Hence  it  was  that  a  party  intending  to  defame  an- 
other, accomplishes  his  object  by  assuming  a  squalid  and  abject  appearance,  under 
pretence  of  supplication  for  one  accused  of  a  heinous  crime.  Haec  autem  fere  sunt 
quffi  ad  infaniiam  alicuju.sque  fiunt.  Ut  puta  ad  invidiam  alicujus  veste  lugubri  ut- 
itur  aut  spualida  aut  si  barbam  demittat  vel  capillos  submittal,  aut   si    carmen  con- 

scribat,  &c. 

Many  incidents  were  founded  on  ihe  doctrine  of  the  Roman  law,  that  contumely 
was  the  ground  of  action,  in  which  it  differs  from  the  law  of  England.  If  an  infant, 
or  one  in  a  state  of  into.xication,  defamed  another,  the  action  failed,  for  the  mens  rea, 
the  contumelious  intention,  was  wanting  ;  in  England,  such  a  defence,  if  the  act 
were  voluntary,  would  be  unavailable. 

By  the  Roman  law,  a  party  was  not  only  entitled  to  sustain  an  action  for  contu- 
melious words  spoken  concerning  himself,  but  also  in  respect  of  those  spoken  of 
others  of  his  family,  if  they  tended  collaterally  to  subject  hira  to  degradation  and 
contempt. 

Thus,  a  father  was  entitled  to  recover,  in  respect  of  a  contumelious  injury  offered 
to  his  wife,  children,  or  domestics,  piovided  the  offender  knew  the  relationship  of 
the  party  so  offended.  Heineccius,  pt,  7.  sec.  118.  So  far  was  the  principle  carried 
by  the  Roman  law,  that  even  the  heir  was  entitled  to  an  action  for  an  insult  to  the 
remains,  or  even  the  memory  of  the  deceased.  Et  si  forte  cadaveri  defuncti  fit  in- 
juria cui  hcei-edes  bonorum  possessores  exstitimus,  injuriarum  nostro  nomine  habe- 
mus  actionem.  Spectat  enim  ad  existimationem  nostram  si  quffi  ei  fiat  injuria. 
Idemque  et  si  fama  ejus  cui  hceredcs  exstitimus  lacessatur. 

The  same  degree  of  iiidefiniteness  which  characterises  this  branch  of  the  Roman 
law,  naturally  pervades,  also,  the  codes  of  those  nations  who  have  adopted  the  prin- 
ciples of  that  law.  In  Scotland,  for  instance,  the  limits  of  civil  as  well  as  criminal 
liability  are  exceedingly  wide.  Thus,  in  the  case  of  Aitken  v.  Read  and  Fleming, 
2  Mur.  Rep.  149,  (cited  in  Mr.  Borthwick's  learned  and  valuable  Treatise  on  the 
Law  of  Libel  in  Scotland,  p.  184,)  the  judge  observed,  "  There  are  disadvantages  in 
allowing  actions  of  this  sort,  where  there  is  no  accusation  of  a  crime,  or  allegation 
of  specific  damage.  By  the  law  of  Scotland,  however,  any  thing  defamatory  is  the 
foandation  of  an   action."     In    the   case  oi  Mackenzie  v .  Read ,  2  Murr.  Rep.    159- 


PRELIMINARY  DISCOURSE.  xxxii 

of  •either  produces  or  immediately  tends  to  produce  [  *xxxii  ] 
actual  damage,  ought  the  fahitj  Qio')  of  that  which  is 

Borthw.  184,  the  court,  after  observing  that  the  law  on  the  subject  of  slander,  in 
England,  was  very  particularly  defined,  added,  here,  any  thing  that  produces  uneasi- 
ness of  mind,  is  actionable. 

Several  instances  are  cited  by  Mr.  Borlhwick,  in  his  excellent  work,  p.  186,  of 
suits  commenced  and  sustained  on  very  slight  grounds.  In  Uemls  v.  Joip  and  others. 
Dr.  Merais  instituted  an  action  against  the  defenders,  in  order  xo  obtain  redress  for 
the  alleged  injury  of  having  caused  his  designation,  "  Medicinse  doctor  in  Aber- 
donia,"°conlained'  in  the  charter  of  the  infirmary,  to  be  translated  "Doctor  of  Medi- 
cine in  Aberdeen,"  instead  of  p/ii/sic/an  in  Aberdeen.  The  action  was  sustained; 
but,  after  years  of  litigation,  the  defendants  were  assoilzied.  In  the  conclusion  of  his 
report,  Mr.  Tail  observes,  "  That  there  was  no  strong  animus  injuriandi  to  hurt  Dr. 
Mentis  seemed  admitted;  at  the  same  time,  it  appeared  a  conduct  rather  peevish  aiid 
uncivil  in  his  brethren,  and  an  intentional  aff'ront  to  refuse  to  giatify  the  doctor  in 
this  request.  But  the  lords  thought  that  they  did  not  meet  to  decide  what  loas  civil, 
but  what  loas  wrong.  In  this  case,  there  was  no  wrong.  The  translation  was  good  ; 
no  damage  had  followed,  or  could  follow  upon  it;  therefore  the  action  was  foolish 
and  wrong-headed." 

The  code  penal  of  France  visits  with  penal  censures  all  calumnies  uttered  in  public 
places,  or  published  in  writing  or  in  print,  which  impute  facts  which  are  the  subject 
of  criminal  or  correctional  process,  or  which  would  expose  another  to  the  contempt 
or  hatrel,  an  mepris  oa  a  la  haine,  of  the  citizens  : — 

If  the  fact  imputed  be  punishable  with  death,  perpetual  hard  labour,  or  deporta- 
tion, the  calumniator  is  liable  to  imprisonment  for  from  two  to  five  years,  and  a  fine 
of  from  200  to  5000  francs.  In  other  such  cases,  to  an  imprisonment  of  from  one  to 
six  months,  and  a  fine  of  from  .50  to  2000  francs. 

Injurious  expressions,  which  impute  a  vice  but  no  precise  fact,  if  so  published, 
subject  the  oficnder  to  a  fine  of  from  16  to  500  francs. 

All  other  injurious  and  outrageous  expressions,  which  want  the  double  character, 
de  gravite  et  publicite',  are  delicts  of  simple  police. 

The  Veritas  convicii  cannot  be  pleaded  generally ;  on  the  contrary,  every  imputa- 
tion is  presumed  to  be  false  which  is  not  legally  established  in  the  due  course  of 
law,  but  if  pending  a  proceeding  for  such  a  calumny,  the  defendant  shall  denounce 
the  complainant,  proceedings  shall  be  stayed  till  the  charge  be  decided. 

And  in  case  the  fact  imputed  shall  be  proved  to  be  true,  the  author  of  the  impu- 
tation shall  be  exempt  from  all  punishment. 

(w)  By  the  laws  of  Solon,  it  was  forbidden  to  defame  another  in  public  places. 
under  a  penalty  of  three  drachmas  to  the  party  injured  and  two  to  the  treasury. 
Lege  sanxit  Solon  ne  quis  de  alio  detrahat  in  locis  sacris  in  judiciis,  in  magistratum 
concessibus,  &  in  spcctaculis,  qui  secus  faxit  ei  de  quo  detraxit  multam  pendat 
drachmas  tres,  &  serario  publico  duas.     Pettit.  in  Leg.  Att.  535. 

In  such  instances,  the  truth  or  falsity  of  the  charge  seems  to  have  been  imma- 
terial ;  the  compensation  was  paid  in  respect  of  the  public  insult.  In  other  cases,  a 
fine  of  two  drachmas,  as  it  seems,  was  imposed,  in  respect  of  mere  light  and  trivial 
charges,  whilst  in  respect  of  graver  ones,  and   where  a  crime    of  legal  cognizance 


xxxiii  PRELIMINARY  DISCOURSE. 

[  *xxxiii  ]     published    "to   be   essential  to   the   remedy  ;  in  other 
words,  ought  its  truth  to  afford  an  answer  to  the  claim, 

was  charged,  a  much  heavier  fine  was  imposed.  Dut,  in  either  case,  the  fine  was 
conditional,  viz.  unless  the  defendant  proved  his  charge  to  be  true.  The  law  was 
Tov  XeyovTu  xuy.ujg  iup  fxrj  unocpai  pj]  wg  egiv  alydri  xa  Bigrjusva,  t,7ifiiovgdai. 
Qui  de  alio  detractaverit,  ni  iprobarit  verura  esse  quod  objecit  probrum,  multa. 
tor.  But  it  was  enacted,  tov;  XeyoJiug  Tt  tojv  ATI  OPPHTJllV  TispjaicoiTiag 
dQn'/i.iug  ocpF.ileiv.  jjon  licebat  igitur  alteri  exprobare  ea  quas  si  qnis  patrasset  in 
eum  insurgebant  leges  &  aniraadvertebant  nisi,  '^^  ocpaiVBiv  &;  sgiv  aXr^dri 
posset  apud  judices,     Pcttit.  ib. 

In  respect  of  some  other  specific  charges,  a  fixed  penalty  was  also  payable.  Veti- 
tun)  quoque  lege  erat  alteri  objicere  quod  cljpeum  abjecisset  qui  hoc  convicium  fece- 
rit  quingentis  drachmis  multabatur.— £^iV"  JE  TI2<I>A2KH  ATIOBEBAH. 
KENAI  THN  Ai:niJA  YIJOdlKOlV  EINAI. 

The  same  laws  also  contained  an  express  provision  against  a  calumnious  charge 
of  homicide.  Nam  homicids  omnibus  civitatis  juribus  sacris  pariter  &  publicis  ex- 
cidebant,  ita  ut  ne  illos  quidem  alii  alloquio  dignarentur.    Pettit    ib. 

Whether,  according  to  the  Roman  law,  the  truth  of  a  defamatory  charge  made 
against  an  individual  afforded  a  complete  defence,  without  reference  to  the  motive 
and  intention  of  the  publisher,  has,  it  is  well  known,  been  doubted.  And  yet  the 
authorities  seem  to  weigh  strongly  in  favour  of  the  affirmative  of  the  question,  as 
well  in  reference  even  to  the  criminal  as  to  the  civil  action.  The  general  doctrine 
appe.^rs  most  clearly,  from  the  celebrated  response  of  Paulus,  which  was  imported 
into  the  digest.  '^Etim  qui  nocentum  infamavit  non  esse  bomim  aquum  ob  earn  rem  con- 
demnari  pedata  enim  noctntium  nota  esse  et  oportere  et  expedire ;  for  though,  according 
to  MatlhiEUS,  "  Solet  Paulus  in  disserendo,  <5xoT«;;off  seu  obscurus  esse,"  yet  his 
meaning  is  in  this  instance  too  plainly  esprcssed  to  admit  fairly  of  any  doubt,  not- 
withstanding the  interpretation  attempted  to  be  imposed  upon  the  words  by  his 
numerous  commentators.  Some  of  them  have  asserted,  that  the  response  must  be 
limited  ^to  the  charging  offences,  the  detection  of  which  is  of  importance  to  the 
state;  but  the  plain  and  obvious  meaning  of  the  terms  repels  such  a  restriction  ; 
the  word  peccata  naturally  comprehends  every  species  of  delinquency,  whether  it  be 
against  law  or  morals,  and  is  not  confined  to  the  admissum  crimen,  or  delictum,  by 
which  legal  delinquency  is  so  frequently  described. 

Thus  Matthaeus,  in  his  treatise  De  Criminibus,  cap.  1.  makes  peccatum  the  genus, 
crimina  &  delicta  species,  and  he  observes  "  sunt  peccata  quaedam  ita  levia  ut  ea 
queramur  magis  quam  exequaraur  ut  legibus  quoque  nulla  sit  imposita  poena,  cujus 
generis  si  quis  requirat  inveniat  sequentibus  locis,  1.  si  quis  14.  §  Divus  D.  de 
Relig.  et  sunt  fun.  1.  3.  §  non  perpetute,  D,  de  sepul.  viol.  1  verum  est.  39.  D.  de 
furt,  sunt  alia  qua;  legibus  vindicantur  non  una  tamen  emnia  severitate."  These 
and  many  other  authorities,  which  might  if  necessary  be  cited,  show  clearly  th?.t  the 
peccalum  of  Paulus  was  not  to  be  restrained  to  the  highest  and  most  penal  offences. 
See  Cic.  de  Finibus,  4.  Herat.  Sat.  1.  Even  if  the  sense  were  doubtful,  it  would  be 
absurd  to  adopt  a  construction  the  effect  of  which  would  be  to  permit  a  man  to  jus- 
tify by  proving   the  truth,  where  he  had  imputed  the   commission    of  a    monslrous 


PRELIMINARY  DISCOURSE.  xxxiv 

either  absolutely  *or  with  qualifications  ?     By  the  law     [  *xxxiv  ] 
of  England,  which,  in  this  respect,  conforms  with,  as  it 

crime,  but  to  exclude  him  from  a  similar  defence  when  he  charged  one  of  inferior 
magnitude.  If  a  man  may  justify  a  charge  of  murder,  by  proving  it  to  be  true,  why 
should  he  not  be  permitted  to  do  the  same  when  he  has  imputed  robbery  or  theft. 
If  the  public  are  interested  in  knowing  the  character  of  a  murderer,  have  they  not 
also  some  interest  in  Itnowing  that  of  a  thief  ?  The  reason  for  allowing  truth  to  op- 
erate as  a  justification,  is  still  stronger  where  the  alleged  slander  docs  not  impute 
any  misconduct  of  legal  cognizance;  for  there  the  public  cannot  Lc  put  on  tbeir 
guard  by  means  of  a  judicial  charge.  Others  again  have  urged  that  the  response 
must  be  construed  with  the  annexation  of  this  condition,  that  the  imputation  be  not 
made  animo  conviciandi.  And  the  rescript  of  Dioclesian  and  Maximian  bus  been 
cited  in  support  of  this  limitation.  ''■  Si  non  convicii  consilio  te  aliquid  injuriosum 
dixisse  probare  fotes,  fides  veri,  a  calumnia  te  defendit.  Si  autem  in  rixam  incon- 
sulto  calore  prolapsus  homicidii  convieium  objecisti,  et  ex  eo  die  annus  excessit, 
cum  injuriarum  actio  annuo  tempore  prescripta  sit  ob  injuria;  admissum  conveniri  non 
potes."  The  true  construction  of  the  v/ot ds  fides  veri,  seews  clearly  to  be,  not  as 
some  would  have  it,  that  the  truth  shall  be  a  defence,  provided  the  alleged  slander 
was  not  published  with  intent  to  defame,  but  that  proof  of  the  absence  of  such  an 
intention  shall  be  a  defence.  The  words  fides  veri  do  not  refer  to  the  proof  of  the 
truth  of  the  defamatory  matter,  but  to  proof  of  the  circumstance  stated  by  Victo- 
rinus,  namely,  that  he  had  imputed  the  crime  of  homicide, — non  convicii  consilio.  €. 
Victorinus  had  inquired  whether  he  should  be  amenable  if  he  could  prove  that  he 
uttered  the  words  without  the  animus  infamandi  ?  The  answer  was,  that  if  he 
could  establish  the  truth  (not  of  the  charge  but,)  of  the  circumstance  which  he  re- 
lied on,  i.  e.  the  absence  of  an  intention  to  defame,  that  proof  would  serve  for  a  de- 
fence. It  is  scarcely  necessary  to  observe  that  the  plain  and  literal  construction  of 
the  words  of  Paulus  derives  confirmation  from  the  celebrated  dialogue  between  Hor- 
ace and  Trebatius. 

Trebatius  :  "  Sed  tamen  ut  monitus  caveas,  ne  forte  negoti 
Incutiat  tibi  quid  sanctarum  inscitia  Icgum . 
Si  mala  condiderit  in  quern  quis  carmina  jus  est 
Judicium  que" — 

Horatius.     "  Esto  si  quis  mala,  sed  bona  si  quis 

Judice  condiderit  laudatur  Ccesare,  si  quis 
Opprobriis  dignum  laceraverit  integer  ipse.^ ' 

Trebatius  :  "  Solventur  risu  tabula.  :  tu  missus  abibis.'' ' 

The  very  nature  of  the  penalty  imposed  on  a  libeller,  by  the  Cornelian  law,  sup- 
plies an  argument  tending  to  a  similar  conclusion  :  he  was  to  become  intcstabilis, 
that  is,  incapable  of  giving  testimony  in  a  judicial  proceeding.  But  why  intcstabilis, 
if  he  had  published  merely  the  truth  ?  To  exclude  one  from  giving  testimony  who 
had,  by  njalsc  and  malicious  charge,  attempted  to  deprive  another  of  his  character, 
would  at  least  be  a  consistent  and  plausible  provision,  but  it  would  be  a  strange  rea- 
son for  rejecting  a  witness,  that  he  had  published  what  was  true,  even  though  he  had 
done  it  maliciously. 


XXXV  PRELIMINARY  DISCOURSE. 

[  *xxxv  ]     seems,  the  *rule   of  civil  law,  the  truth  of  the  alleged 
slander  is  an  absolute  answer,  or  bar,  to  the  claim  to 

Will  respect  to  those  judicial  but  anonymous  charges  of  capital  offences  which 
came  ^virhin  the  description  of  Libellus  Famosus.  (see  the  Constitutions  de  Libellis 
Famosis  in  the  Theodosian  Code,  particularly  the  4th  and  5th,)  the  author,  when 
discovered,  not  only  might,  but  was  obliged,  at  the  peril  of  bis  life,  to  prove  tha 
truih  of  the  charge.  Thus,  according  to  the  first  constitution  in  the  Theolosiaa 
code,  "  Si  quando  famosi  iibelli  reperiantur  nulhsexinde  calumnias  patiantur  ii  quo- 
rum ile  factis  vcl  nominibus  aliquid  conlinebant,  sed  scriplionis  auctor  potius  reper- 
iatur  et  repertus  cum  omni  vigore  cogatur  his  de  rebus  quas  proponendas  credidit 
comprobare,  nee  tamen  supplido  eliam  si  aliquid  ostenderit  subtrahatur." 

It  is  observable  that  the  latter  branch  of  this  constitution  directed  that  the  author 
of  the  anonymous  charge  should  not  escape  without  punUhment,  even  though  he 
proved  the  charge  to  be  true  ;  yet  this  was  no  doubt  intended  to  be  awarded  in  re- 
spect  of  his  misconduct  in  the  first  instance,  in  making  an  anonymous  charge,  when 
he  was  able  to  convict  the  guihy  party,  it  does  not  by  any  means  appear,  that,  having 
proved  the  truth,  he  was  subject  to  the  same  degree  of  punishment  as  though  he  had 
not  given  such  proof;  indeed,  the  very  contrary  may  fairly  be  inferred.  Even  this 
provision  found  no  place  in  the  Justinian  code,  which,  so  far  from  inflicting  punish- 
ment on  the  author  of  the  Famosus  Libellus.  when  he  had  disclosed  his  name  and 
proved  his  charge,  deemed  him  to  be  worthy  of  praise  and  reward.  "  Sane  si  quis 
devotionis  suce  ac  salutis  publiciE  custodiam  geral,  nomen  suum  profiteatur,  &  qua 
per  Himosum  libellum  persequenda  putaverit,  ore  proprio  edicat,  ita  ut  absque  ulla 
trepidatione  accedat,  sciens  quidem  quod  si  adsertionibus  suis  veri fides  fuerit  opitu- 
lata,  laudem  maximam  et  prcemium  a  nostra  dementia  consequetur;  sin  vero  minime 
vera  ostenderit  capitali  pcenu  plectetur." 

Consistently,  however,  with  the  response  of  Paulus,  the  Roman  law  contemplated 
many  instances  of  the  convicium  and  libellus  which  were  visited  civilly  as  well  aa 
criminally,  notwithstanding  their  truth.  Thus  it  was  in  all  cases  where  the  publi- 
cation was  in  its  own  nature  injurious  and  illegal,  and  where  no  advantage  was  to 
be  derived  from  publicity.  "  Sin  autem  quod  objicitur  innotescere  nihil  interest, 
putasialterpoenam  delicti  sui  sustinuer it  aut  in  vitinm  naturale  objiciatur  claudus 
aliquis  luscus  aut  gibbosus  vocetur,  veritatem  convicii  non  excusare  quo  minus  am- 
mo injuriandi  id  factum  proesumatur,  contrarii  tamen  probationem  hie  admittendam." 
Vinn.  Comm.  in  Just.  Inst  lib.  4.  tit.  4. 

The  law  of  England  differs  from  the  Roman  law  in  regard  to  the  effect  of  the  Ve- 
ritas convicii,  in  two  respects,  first,  that  the  former  repels  the  civil  remedy  in  all 
cases  where  the  imputation  is  true  (except,  perhaps,  in  the  case  of  a  conviction  and 
subsequent  pardon;)  the  Roman  law,  on  the  other  hand,  limited  the  defence  to  those 
cases  where  the  public  were  benefited  by  the  divulgation  of  the  truth.  By  the  Ro- 
man law,  the  personal  affront,  or  contumelia,  to  which  the  consilium  conviciandi, 
the  animus  infamandi,  or  injuriandi,  were  essential,  constituted  the  basis  of  the  pro- 
ceeding criminal  as  well  as  civil :  the  benefit  which  society  would  derive  from  the 
exposure  of  evildoers,  was,  on  grounds  of  policy,  in  either  case,  a  legal  bar  to  the 
proceeding  ;  but  it  was  one  which,  in  its  nature,  was  not  available  where  the  impu- 
tation was  of  such  a  nature  that  notoriety  was  unimportant.     The  law  of  England, 


PRELIMINARY  DISCOURSE.  xxxvi 

damages.     But  *in  some  other  countries,  even   those     [  *xxxvi  ] 
\?hich  recognise   the   authority   of  the  civil   law,  the 

on  the  other  hand,  considers  the  damage  consequent  on  the  slander,  whether  actual 
or  presumed,  as  the  basis  of  the  civil  remedy,  aud  denies  the  remedy  wliere  the  im- 
putation is  true;  partly,  perhaps,  adopting  the  same  rule  of  policy  with  the  civil 
law,  but  chiefly,  as  it  seems,  on  the  general  consideration  that,  where  nothing  more 
than  the  truth  is  published,  any  damage  or  loss  consequent  upon  it  cannot,  in  point  of 
natural  justice,  or  at  least  of  civil  policy,  and  on  grounds  of  general  utility  and  con- 
venience, be  attributed  to  the  mere  publisher  of  the  fact.  The  same  considerations 
tend  to  explain  another  broad  distinction  between  the  law  of  England  and  the  Ro- 
man law,  connected  with  the  present  sulject ;  according  to  the  latter,  when  the 
truth  of  the  alleged  slander  operated  as  a  defence  against  the  civil  action,  it  operated 
also  equally  as  a  defence  against  the  criminal  proceeding;  whilst,  on  the  contraryi 
though  the  law  of  England  constitutes  the  truth  universally  a  bar  to  the  civil  remedy 
yet  the  general  rule  is,  that  this  consideration  affords  no  defence  upon  a  criminal 
charge.  The  civil  law  made  the  personal  insult  or  contumely  indiscriminately  the 
basis  of  criminal  and  of  civil  liability,  consequently  the  justification,  which  on 
grounds  of  public  policy  exempted  a  party  from  liability  in  the  civil  proceeding,  ope- 
rated with  at  least  equal  if  not  greater  force  to  protect  him  from  penal  consequences. 
The  law  of  England,  on  the  contrary,  places  civil  and  criminal  responsibility  on  dis- 
tinct grounds,  regarding  the  mischief  to  the  private  individual  as  the  basis  of  the 
former,  the  mischief  to  society  the  foundation  of  the  latter  ;  and  though  in  the  crim- 
inal proceeding,  the  law  does  not  by  any  means  lose  sight  of  the  consideration  that 
the  public  is  benefited  by  the  exposure  of  delinquents,  and  on  this  ground  as  it 
seems  does  not  visit  mere  oral  defamation  penally,  yet  in  case  of  written  defamation 
the  mischief  which  would  result  to  the  public,  for  want  of  restraint,  is  the  ground  of 
imposing  restraint,  and  this  operates  even  where  the  defamatory  matter  is  true.  The 
law,  in  efl^ect,  proceeds  on  a  presumption  that  a  greater  degree  of  mischief  would  re- 
sult to  society  from  permitting  the  truth  of  written  slander  to  operate  as  a  justifica- 
tion in  such  a  case,  than  that  which  arises  from  a  partial  suppression  of  truth.  But 
although  it  is  now  a  well  established  rule  of  the  law  of  England  that  truth  is  no  de- 
fence to  a  criminal  prosecution  for  calumny,  yet  it  seems  to  be  at  the  least  doubtful 
whether  a  different  rule  did  not  formerly  prevail  even  in  this  country. 

By  a  law  of  Alfred,  the  inventor  of  slander  was  liable  to  expiate  his  offence  by  the 
loss  of  his  tongue,  unless  he  redeemed  it  by  the  price  of  his  head.  Si  quis  publicum 
mendacium  confingat  et  ille  in  eo  firmetur  nulla  levi  re  hoc  emendet  sed  lingua  ei 
excidatur  nee  minore  pretio  redinii  liceat  quam  capitis  asstimatione.  Wilkins,  Leg. 
Ang.  Sax.  41.  pi.  28.  See  also  the  law  of  Edgar,  Lamb,  Saxon  Law,  64.  And  by 
a  law  of  Canute  "  Et  sequis  alterum  injuria  diflamare  velit  ut  alterutrum  vel  pecunia 
vel  vita  ei  diminuatur  si  tunc  alter  earn  refellere  possit  perdat  linguam  suam  nisi  illam 
capitis  sestimatione  redimere  velit.  Wilk.  Leg.  Ang.  Sax.  186.  Bracton,  in  the  reign 
of  Henry  the  Third,  states  the  law  under  the  head  of  injuria  nearly  in  the  language 
of  the  Institutes. 

"  Fit  autem  injuria  non  solum  cum  quis  pugno  percussus  fuerit  verberatus  vulne- 
ratus  vel  fustibus  ccesus,  verum  cum  ei  convicium  dictum  fuerit  vel  de  eo  factum 
carmen  famosum  et  hujusmodi."    It  was,  therefore,  not  improbable  that  the  veritai 

Vol.  I.  11 


xxxvii  PRELIMINARY  DISCOURSE. 

[  *xxxvii  J     truth  of  the  calumny  *is  regarded  but  as  a  qualified  de- 
fence subject  to  several  modifications  (x). 

convicii  was,  in  conformity  with  the  civil  law,  allowed  generally  by  way  of  plea  or 
exception.  Again,  from  the  language  of  the  statutes  de  scandalis  magnatum,  the 
first  of  which  was  in  the  third  year  of  Edward  the  First,  the  offence  against  which 
they  were  directed,  was  the  spreading  oi  false  news,  rumours,  or  tales,  and  this  ob- 
ject plainly  appears  also  from  the  st.  2.  R.  2.  st.  1.  c.  5.  "  Of  the  devisers  of  false 
news,  and  of  horrible  and  false  lies  of  prelates,  dukes,  earls,  and  barons,  and  other 
noble  and  great  men  of  the  realm,  or  of  the  things  \yhich  by  the  said  persons  never 
were  spoken  or  done,  or  thought,  &c.  it  was  enacted  that  none  under  grievous  pain, 
&c. ;"  whether  these  be  considered  as  introductory  of  a  new  offence,  or  but  as  declar- 
atory of  the  former  law,  it  is  not  easy  to  suppose  that  falsity  was  a  necessary  ingre- 
dient in  order  to  bring  an  offender  to  justice,  for  scandalizing  the  magnates  of  the 
realm ;  whilst  in  ordinary  cases  falsity  was  not  essential ;  in  other  words,  that  the 
king  and  his  nobles  were  worse  protected  against  defamatory  attacks  than  the  rest 
of  the  community.  The  earliest  judicial  authority  in  this  country,  for  saying  that 
truth  is  no  answer  to  an  indictment  for  a  libel,  appears  to  be  the  resolution  in  the 
case  De  Libellis  Famosis,  5  Coke,  125  ;  and  from  that  time  the  rule,  which  seems 
to  be  one  of  policy  and  convenience,  has  been  strictly  adhered  to. 

(x)  Whatever  of  doubt  existed  among  the  Roman  jurists  as  to  the  effect  of  plead- 
ing the  Veritas  convicii,  and  in  addition  to  this,  all  the  doubts  created  by  the  con- 
flicting opinions  delivered  by  the  numerous  commentators  upon  the  Roman  law, 
have  been  imported  into  the  laws  of  those  countries  which  have  adopted  the  rules  of 
the  Roman  law  on  this  subject. 

Even  the  law  of  England  has  not  nnfreqnently  been  obscured  by  difficulties 
plainly  derivable  from  this  plentiful  source.  It  was  long  before  the  distinction  was 
completely  settled  in  this  country,  that  truth  was  a  complete  justification  in  a  civil 
action,  though  it  was  no  defence  to  a  prosecution  for  a  libel  ;  the  doubts  on  this 
subject  were  evidently  attributable  to  the  civil  law  doctrine,  which,  in  a  great  mea- 
sure, confounded  civil  with  criminal  liability,  and  made  the  same  justification  apply 
to  either. 

The  law  of  Scotland  affords  a  strong  illustration  of  the  obscurity  and  difficulties 
which  have  resulted  to  those  who  have  embraced  the  doctrines  of  the  civil  law  and  its 
commentators.  Mr.  Borthwick,  in  his  very  able  and  excellent  work,  on  the  Law  of 
Slander  and  Libel  in  Scotland,  where  he  treats  of  the  plea  of  Veritas  convicii  and 
the  obscurity  under  which  it  labours,  does  not  hesitate  to  ascribe  that  obscurity  to 
the  conflicting  and  unsatisfactory  opinions  which  the  commentators  on  the  Roman 
law  have  delivered  in  reference  to  this  subject.  He  truly  says  after  fllatthseus  (De 
Crim.)  "  Ad  glossographos  frustra  aspexeris  garrinnt  enim  magnas  nugas  totoque 
oelo  aberranta  mente  jurisconsultorum  Pauli  et  Ulpiani."  And  he  concludes, 
"  Hence  we  may  account  for  the  opposite  opinions  as  to  the  right  to  plead,  and  the 
effect  of  proving  the  Veritas  convicii  which  have  been  supported  by  Scottish  lawyers 
amidst  the  great  learning  and  infinite  ingenuity  to  be  found  in  the  printed  pleadings, 
which  have  taken  place  in  some  of  our  laws  on  the  subject  of  libel  and  slander :  they 
borrowed  their  authorities,  to  a  considerable  extent,  from  these  Glossographi,  and  the 
law  of  England,  to  which  the  pleadings  in  the  Scotch  cases  contain  also  frequent  ex- 


PRELIMINARY  DISCOURSE.  xxxviii 

*The  importance  and  interest  which  belong  to  the    [  "xxxviii  ] 
question,  may  warrant  a  few  observations  tending  to 

amplea  of  reference,  has,  on  this  point,  not  served  to  preserve  us  from  contrariety  of 
decisions ;  for  it  also  has  had  its  fluctuations  as  to  the  competency  and  incompetency 
of  justifying  the  charge  in  cases  of  defamation."  Mr.  Borthwick,  in  tracing  the 
law  of  Scotland  on  this  subject,  refers  to  two  ancient  acts  of  the  Scotch  Parliament, 
which  as  he  justly  obssrves,  seem  to  indicate  the  favour  shown  by  the  common  law 
(of  Scotland)  to  the  admission  of  the  plea  of  Veritas  convicii  as  an  exculpatory  de- 
fence, even  in  some  instances  of.  criminal  prosecutions. 

The  first  of  these  is  the  act  of  1540  c.  104.  "The  pains  of  judges  that  dois 
wrong,  and  of  them  quha  slanders  them  wrongously"  and  the  act  provides  that, 
"  gif  any  manner  of  person  murmuris  (defames,  see  Hume's  Comm.  334,  400.)  any 
judge,  temporal  or  spiritual,  alsweil  lords  of  session  as  utheris  and  proovis  not  the 
samin  svfficiantly,  he  shall  be  punished  in  suitable  manner  and  sorte,  as  the  said 
judge  or  person  whom  he  murmuris  ;  and  shall  pay  any  paine  arbitral  at  the  will  of 
the  king's  grace  for  the  infaniing  of  sic  persones."  And  by  the  act  1587,  c.  49, 
which  narrates  in  the  preamble  the  odious  crime  of  treason,  and  on  the  other  hand, 
that  "  the  malicious  accusers  of  innocent  persons  are  nocht  to  bo  credited,  but  severely 
punished,  therefore  the  act  proceeds  ;  it  is  statute  and  ordained  by  our  soveraine  lord 
and  the  three  estates  of  the  present  parliament,  that  quhaever  accuses  anuther  per- 
son of  treason,  the  party  calumniate  being  called,  accused,  and  acquite  of  the  said 
crime  of  treason,  the  accuser  shall  incur  the  same  crime  of  treason  quhair  of  he  ac- 
cused the  uther."  It  has  already  been  observed  that  the  statutes  of  scanJalum 
magnatum  which  makes  the  falsiti/  of  the  charge  part  of  the  description  of  the  offence 
and  which  have  been  considered  to  be  declaratory  of  the  common  law  of  England, 
afford  probable  reason  for  inferring  that,  by  the  ancient  common  law,  falsity  was 
essential  to  criminality,  in  case  of  personal  defamation.  But  though  the  civil  law 
is  recognized  by  the  law  of  Scotland,  it  is  remarkable  that,  according  to  the  modern 
practice  in  Scotland,  the  plea  that  the  facts  were  true,  is  not  a  complete  answer  to  a 
criminal  prosecution  for  libel,  (Borthwick's  L.L.  250.)  and  that,  even  in  the  cases 
of  contumelious  words  spoken  in  the  heat  of  a  dispute  and  to  the  person's  face,  the 
truth  of  the  injurious  words  seldom  absolves  entirely  from  the  punishment.  Er- 
skine's  Principles,  b.  4.  tit,  4.  sec.  45. 

To  this  extent,  therefore,  the  Scotch  jurists  have  deviated  from  the  Roman  law, 
which  seems  equally  to  have  repelled  both  criminal  and  civil  actions  where  the 
charge  was  true.  With  respect  to  the  effect  which  the  law  of  Scotland  attributes  to 
the  Veritas  convicii,  in  civil  actions,  Mr.  Borthwick,  after  stating  the  various  decisions 
and  opinions  upon  this  vexatissiraa  qusestio  :  upon  which  lawyers  of  the  greatest 
eminence  have  differed,  adds,  that  some  of  them  have  thought  that  the  law  had  not 
arrived  at  such  a  degree  of  maturity,  as  to  possess  any  general  rule  upon  the  subject. 

It  seems,  however,  to  be  a  general  rule  of  the  law  of  Scotland,  that  the  truth  of 
the  imputation  shall  never  be  admitted  as  a  justification,  unless  some  circumstances 
appear  in  the  case  which  afford  a  presumption  of  the  defender's  want  of  malice,  or 
at  least  to^  make  it  appear  that  whatever  his  secret  feelings  were,  he  acted  with  a 
view  to  some  beneficial  purpose.     And,  secondly,  that  the  truth  is  not  admissible. 


xxxix  PRELIMINARY  DISCOURSE. 

[  *xxxix  ]     *show  the  reasonableness  and  expediency  of  the  rule 

adopted  by  the  law  of  England  in   this  respect — of 

[     "xl     ]     withholding  *che  remedy  in  damages  in  all  cases  where 

the  imputation  is  true. 
[  *xli  ]  *That  no  right  to  damages  can,  on  general  principles, 
be  founded  on  a  publication  of  the  truth  seems  to  follow, 
[  *xlii  ]  *simply  from  the  consideration  that  the  reason  for  award- 
[  *xliii  ]  ing  damages  in  every  such  case  fails.  The  right  *to  com- 
pensation, in  point  of  natural  justice,  is  founded  on  the 
deception  and  fraud  which  has  been  practised  by  the  defendant  to 

the  detriment  of  the  plaintiff. 
[  *xliv  ]  'If  A.  falsely  and  maliciously  allege  that  B.  has  com- 
mitted a  crime  punishable  by  the  law,  and,  in  conse- 
quence of  that  false  assertion  B.  suffers  imprisonment,  he  is,  in  point 
of  natural  justice,  entitled  to  compensation,  in  respect  of  the  injury 
thus  wrongfully  occasioned.  But  if  A.  were  truly  to  assert  that  B. 
had  committed  that  crime,  and,  in  consequence,  B.  were  to  be  impri- 
soned and  punished,  it  would  clearly  be  contrary  to  justice  and  rea- 
son that  A.  should  be  bound  to  make  compensation.  It  would  be 
manifestly  absurd  and  unreasonable  that  the  law  should  first  impose 
a  penalty  on  B.  for  his  delinquency,  and  then  entitle  him  to  recover 
the  amount,  or  an  equivelent  compensation  from  A.     It  is,  therefore, 

even  to  the  extent  of  mitigating  the  damages  where  the  inference  of  malice  is  too 
strong  to  be  capable  of  being  redargued. 

The  plain  and  simple  rule  of  the  law  of  England,  which  constitutes  the  truth  an 
absolute  bar  to  tlie  action  for  damages,  s?ems  to  possess  considerable  advantages 
over  the  corresponding  law  in  Scotland.  Its  application  is  comparatively  simple,  as 
depending  on  the  mcie  matter  of  fact,  whether  the  charge  be  true  or  false;  whilst 
on  the  contrary,  by  the  law  of  Scotland,  a  previous  question  frequently  of  a  difficult 
and  perplexing  nature,  is  first  to  be  decided  by  the  court  as  a  matter  of  law,  that  isi 
whether  the  proof  of  the  fact  be  admissible  or  not.  The  admissibility  of  the  proof> 
being  a  question  of  law  for  the  opinion  of  the  court,  must  necessarily  induce  a  multi- 
tude of  decisions,  each  being  in  itself  a  precedent  for  future  ones.  And  even  where 
the  question  of  admissibility  has  been  decided  in  the  affirmative,  proof  of  the  truth, 
by  the  Scotch  law,  is  not  conclusive,  but  is  merely  allowed  to  operate  as  auxiliary 
evidence  in   order  to  rebut  the  inference  of  malice. 

This  doctrine  of  the  Scotch  jurists,  that  the  truth  is  material  only  so  far  as  it  re- 
dargues or  rebuts  the  inference  of  malice,  is  obviously  founded  upon  the  notion  of  the 
civil  law,  that  the  essence  of  the  injury  consists  in  the  contumely,  insult,  01*  personal 
affront. 


PRELIMINARY  DISCOURSE.  "     xliv 

the  deception  which  has  been  practised  by  A.,  and  the  falsity  of 
his  communication  that  makes  the  difference,  and  which  constitutes 
B.'s  title  to  damages.  So,  in  general,  whoever  wilfully  and  falsely 
ascribes  misconduct  or  evil  principles  to  another,  is  guilty  of  fraud 
and  deception  towards  society,  which  possesses  an  interest,  in  truly 
knowing  and  estimating  the  conduct  and  character  of  its  various 
members,  and  is  guilty  also  of  an  act  of  injustice  towards  the  indivi- 
dual, because  the  imputation  tends  to  lower  and  degrade  him  from 
his  proper  place  in  society,  and  to  exclude  him  from  the 
advantages  to  which,  as  a  member  of  *society,  he  is  just-  [  *xlv  ] 
ly  entitled  (?/).     When,  therefore,  a  loss  or  damage  ac- 

(i/)  The  sill  and  mischief  against  society  may  consist  in  deceitful  commendation 
as  well  as  in  unmerited  censure.  One  who  fulsely  and  wilfully  recommended  an 
ignoiani  profligate  to  a  patron  of  a  benefice,  as  a  fit  and  proper  person  to  be  prefer- 
red, would  as  much  offend  against  morals  and  the  interests  of  society,  as  if  he  had 
prevented  the  preferment  of  a  learned  and  conscientious  man,  by  maliciously  de- 
faming him.  The  sin  and  mischief  to  society  would  be  at  least  as  great  in  the  former 
case  as  the  latter,  although  no  one  in  particular  could  show,  in  the  former,  that  he 
had  sustained  any  absolute  temporal  loss,  in  consequence  of  the  fraud.  If,  indeed, 
any  temporal  loss  were  to  be  occasioned  by  such  a  deceitful  and  fraudulent  state- 
ment, then  it  would  be  both  morally  audp  olilically  expedient  that  the  loss  should 
be  borne  by  the  party  who  had   occasioned   it  by   his   wrongful  and  immoral  act. 

This  plain  and  obvious  principle  is  fully  recognized  by  the  law  of  England,  as  in- 
deed it  was  by  the  civil  law,  in  a  variety  of  instances.  Thus,  if  A.  were  fraud- 
ulently to  induce  B.  to  give  credit  to  C,  by  representing  C.  to  be  a  person  of  wealth 
and  credit,  though  A.  knew  him  to  be  insolvent,  he  would  be  responsbile  to  B.  for 
anj'  loss  which  he  might  incur  from  having  trusted  to  A.'s  representations.*  And  if 
one  were  to  give  a  false  and  undeserved  character  of  a  servant  for  honesty,  where 
he  knew  him  to  be  a  thief,  the  party  imposed  upon  having  sustained  damage  from 
the  misrepresentation,  would,  no  doubt,  be  entitled  to  compensation  from  the  author 
of  the  deceit.  The  great  principle  is,  that  where  temporal  loss  is  occasioned  by 
fraud,  reparation  ought  to  follow  ;  to  this  extent  the  moral  and  municipal  law  con- 
cur. Compensation  to  an  individual,  in  respect  of  damage  occasioned  by  a  false  rep- 
resentation of  his  character  or  conduct,  is  one  class  of  cases  which  fall  within  this 
great  principle,  and  in  thi?,  as  well  as  all  others,  it  is  the  fraud  or  dolus  which  gives 
birth  to  the  right. 

If  A.  were  to  inquire  of  B,  as  to  the  credit  and  solvency  of  C,  B.  would  be 
guilty  of  an  immoral  and  fraudulent  act,  as  well  in  recommending  C.  for  his  honesty 
and  wealth,  when  he  knew  him  to  be  dishonest  and  insolvent,  as  in  wilfully  misrep- 
resenting him  to  be  dishonest  and  insolvent,  when  he  knew  the  contrary  to  be  true. 
Justice  requires  that  reparation,  in  the  one  case,  should  be  made  to  the  deceived,  in 
the  other,  to  the  slandered  party. 

•  On  grounds  of  extrinsic  policy,  such  an  action  is  now  confined  by  the  provision 
of  the  late  act,  to  cases  where  the  fraudulent  representation  is  in  writing. 


xlvi     '  PRELIMINARY  DISCOURSE. 

r  xlvi  ]    crues  from  such  a  misrepresentation,  it  is  *con3onantwith 
reason  and  natural  justice, -that  the  author  of  the  mischief 
should  be  bound  to  repair  it. 

But  the  rij;ht  of  the  calumniated  individual  to  receive  a  compen- 
sation must,  in  all  cases,  obviously  depend  on  the  consideration,  that 
by  the  fraud  of  another  he  has  been  deprived  of  that  which  he  was 
otherwise  justly  entitled  to  enjoy  ;  and  the  title  to  compensation  must 
therefore  cease,  when  the  truth  of  the  imputation  is  inconsistent  with 
the  right  of  enjoyment. 

If  a  man  commit  profligate  and  wicked  acts,  upon  what  principle 
can  he  bind  the  rest  of  mankind  to  silence,  or  demand  damages, 
should  his  real  character  be  divulged  ?  How  can  any  right  or  inte- 
rest be  claimed  in  a  false  character,  founded  in  fraud  or  hypocrisy, 
and  subsisting  only  through  ignorance  ?  In  short,  in  such  a  case, 
that  fraud  of  which  an  innocent  man  would  justly  be  entitled  to  com- 
plain, were  his  conduct  or  character  to  be  misrepresented,  attaches 
to  the  guilty  complainant  who  would  suppress  the  truth ;  to  the  hy- 
pocrite who  would  maintain  the  show  of  religion  ;  to  the  profligate 
who  would  be  esteemed  moral  ;  to  the  villain  who  assumes  the  char- 
acter of  an  honest  man,  and  not  to  him  who  plucks  oft"  the  mask  and 

exhibits  the  delinquent  as  he  is  (s). 
[  *xlvii  ]  *Were  the  truth  to  be  no  defence,  it  would  follow 
that  a  guilty  man  would  be  entitled  to  far  greater  dam- 
ages, in  respect  of  a  true  representation,  than  an  innocent  man 
could  claim,  in  respect  of  a  false  one  ;  the  probability  of  convic- 
tion and  of  punishment  would  be  far  greater  in  the  former  than  in 
the  latter  case. 

Again,  in  point  of  natural  justice,  it  is  an  understood  condition, 
in  all  the  various  dealings  and  intercourse  of  society,  that  every 
one  is  what  he  appears  to  be,  in  all  cases  where  exterior  appearance 
can  be  supposed  to  have  any  influence  in  such  dealings  ;  and,  there- 
fore, whenever  an  advantage  is  obtained  by  virtue  of  a  false  appear- 
ance, that  advantage  having  been  gained  by  a  species  of  moral 
fraud,  cannot  be  the  subject  of  right. 

(z)  Cum  autem  duobus  modls  id  est  aut  vi  aut  fraude  fiat  injuria,  fraus  quasi  vul- 
pecalae  vis  Leonis  videtur.utrumque  homine  alienissiraum  sed  fraus  odio  digna  ma. 
jore.  Totius  autem  injustitisE  nulla  capitalior  est  quam  eorum  qui  cum  maximfe  fal- 
iunt  ip  agnnt  at  viri  honi  esse  videantur.     Cic.  de  off.  1.1. 


PRELIMINARY  DISCOURSE.  xlvii 

In  the  next  place,  how  does  the  question  stand  upon  grounds  of 
public  policy  and  convenience  ?  If  an  individual  has  a  right  to 
protection  against  calumnious  and  injurious  misrepresentations,  is 
it  not,  on  the  other  hand,  conducive,  if  not  essential,  to  the  welfare 
of  the  community,  that  the  characters  of  individuals  should  be  tru- 
ly estimated  ?  If  it  be  an  offence  against  an  individual  to  degrade 
him  from  his  place  and  condition  in  society  by  wilful  misrepresenta- 
tion, is  it  not  also  an  offence  against  society  to  raise  an  unworthy 
member  to  advantages  and  honors  which  he  did  not  deserve,  either 
by  false  commendation  or  peremptory  injunctions  to  silence  ? 

It  has  already  been  observed,  that  a  state  of  society  is  one  of 
mutual  confidence,  in  which  each  must  trust  others  for  the  effectual 
discharge  of  every  duty  of  civilized  life.  It  is  obvious,  that  where 
individuals  have  an  interest  in  being  truly  represented,  in  order 
to  enjoy  a  degree  of  confidence  and  esteem  proportioned 
to  their  *merits,  the  public  have  a  mutual  and  correlative  [  *xlviii] 
interest  in  truly  knowing  where  trust  may  be  safely  and 
beneficially  reposed. 

It  is  plain,  that  members  of  the  same  community  have  an  inter- 
est in  mutually  knowing  the  characters  of  those  with  whom  they 
are  to  associate,  for  all  the  various  purposes  and  relations  of  civ- 
ilized hfe.  The  common  imperfections  of  our  nature,  and  the  want 
of  opportunity,  to  a  great  extent  prevent  the  mass  of  mankind  from 
acquiring  a  just  knowledge  of  the  characters  of  each  other  by  every 
man's  own  observation  and  judgment ;  and  the  difiiculty  is  further 
increased,  by  the  consideration  that  the  most  dishonest  and  worth- 
less members  of  society,  at  the  same  time,  use  the  greatest  exertions 
to  preserve  a  fair  exterior. 

What  greater  encouragement,  on  the  other  hand,  could  be  afford- 
ed to  the  exercise  of  every  evil  propensity,  than  that  the  actions  of 
the  wicked  should  be  veiled  in  darkness,  and  that  the  good  and  the 
bad  should  mix  in  society,  without  the  possibility  of  discrimination, 
that  the  apprehension  of  disgrace  should  cease  to  operate  as  an  in- 
centive to  good  conduct,  and  that  the  honest  and  virtuous  part  of  so- 
ciety should  no  longer  be  put  on  their  guard  against  the  practices  of 
the  fraudulent  and  the  depraved  ? 

Let  it,  for  a  moment,  be  considered  what  would  be  the  moral  con- 


xlviii  PRELIMINARY  DISCOURSE. 

sequences  of  a  general  prohibition  to  publish  the  truth.  There  is, 
perhaps,  no  other  feeling  so  strong,  so  universal,  and  so  influential, 
as  it  were,  on  the  actions  of  mankind,  as  the  love  of  reputation. 
That  laws,  without  morals,  are  vain  and  unprofitable,  is  an  ancient 
position,  which  has  been  amply  confirmed  by  the  expe- 
[  *xlix  ]  rience  *of  every  age  and  every  country  ;  that  mere  ab- 
stract moral,  or  even  religious  principles,  unassisted  by 
the  dread  of  censure,  would  be  insufficient  motives  to  good  conduct 
in  respect  of  the  moral  but  undefined  duties  of  social  life  is  equally 
certain. 

What  are  the  great  practical  restraints  which  tend  to  the  observ- 
ance of  legal  and  moral  duties  in  a  state  of  society?  Within  the 
narrow  sphere  of  the  municipal  law,  men  may  be  deterred  nega- 
tively from  doing  evil,  it  may  be,  in  some  few  instances,  compelled 
to  do  positive  good,  by  the  apprehension  of  penal  consequences, 
sufficiently  certain  and  severe  to  enforce  obedience. 

Religious  and  moral  principles,  on  the  other  hand,  though  uni- 
versal as  rules  of  conduct,  want  the  aid  of  temporal  and  immediate 
inducements  to  their  observance.  There  is,  in  fact,  a  large  portion 
of  mankind,  which,  beyond  the  mere  limits  of  absolute  and  peremp- 
tory laws,  scarcely  owns  any  other  restraint  than  the  fear  of  public 
censure  and  its  consequences.  But  the  love  of  fame,  reputation, 
and  character,  is  a  motive  of  human  conduct  as  powerful  as  it  is 
universal,  extending  to  every  action  which  can  be  the  occasion  of 
praise  or  of  blame,  to  all  ranks  and  conditions, — -who  is  free  from 
its  mighty  influence  (a)  ? 

Its  operation  is  coextensive  with  the  moral  law,  whilst  its  induce- 
ments are  of  a  present  and  powerful  nature ;    on  the  one  hand, 
promising  temporal  prosperity ;  on  the  other,  threatening  destitu- 
tion, disgrace,  and  ruin. 
[  *1  ]  *To  reject  the  moral  aid  arising  from  a  feeling  so  uni- 

versal and  so  strong,  that  it  may  well  seem  to  have  been 
conferred  in  order  to  adapt  us  to  a  state  of  society,  would  be  no 
better  than  an  extravagant  and  irreparable  waste  of  moral  power 

(a)  Quid  philosophi  no3tri  ?  noune  in  his  libris  ipsis  quos  scribunt  de  contem- 
nendg,  gloria  saa  nomina  inscribunt  ? 


PRELIMINARY  DISCOURSE.  jl 

which  might  have  been  most  usefully  and  beneficially  applied  to 
public  advantage. 

It  were,  however,  to  regard  the  operation  of  this  great  principle, 
in  a  very  limited  and  confined  view,  were  its  influence  to  be  con- 
sidered merely  in  reference  to  the  immoral  and  unprincipled  ;  the 
policy  is  well  warranted  by  experience,  which  subjects  even  the  best 
and  most  enlightened  of  mankind  to  its  powerful  control. 

The  fear  of  censure  may,  in  eflect,  be  regarded  as  a  moral  force, 
which  operates  strongly,  constantly,  and  uniformly  to  the  public 
good,  in  opposition  to  base  and  unworthy  motives ;  the  best  are  not 
above  (5),  and  even  the  very  worst  are  scarcely  below,  its  salutary 
influence. 

To  prohibit  all  communications  concerning  those  actions  of  man- 
kind which  deserve  censure,  would  be  to  make  every  bad  man  pass 
current  for  a  good  one,  to  provide  a  mask,  under  which  every  prof- 
ligate and  designing  hypocrite  might  practise  with  security  on  the 
innocent  and  the  unwary,  it  would  be  to  repeal  one  of  the  great 
moral  penalties  against  vice,  the  reprobation  of  the  just,  and  con- 
sequent exclusion  from  their  society  ;  it  would  be  to  offer  the  high- 
est possible  premium  for  the  encouragement  of  hypocrisy,  to  efface, 
as  far  as  possible,  all  exterior  distinctions  between  vice 
and  *virtue,  and  to  mix  and  confound  together  the  vir-  [  *li  ] 
tuous  and  the  vicious  to  the  common  detriment  of  all  (c). 

(6)  Negligere  quid  de  se  quisque  sentiat  non  solnm  arrogantis  est  sed  etiam  om- 
nino  dissoluti.     Cic.  de  Off.  1. 

(c)  It  may  further  be  observed,  although  it  seems  to  be  unnecessary  to  dwell  on 
the  subject,  that  if  a  remedy  in  damages  were  to  be  awarded  where  the  imputatioa 
is  true,  part  would  be  given  in  respect  of  the  plaintiff's  own  delinquency  ;  for  the 
truth  of  the  fact,  as  well  as  the  mere  publication  of  it,  have  concurred  in  effecting 
the  privation,  and  thus  the  complainant  would  be  allowed  to  make  gain  of  his  own 
■wrong.  It  is  plain,  also,  that  damages  ought  not  to  be  given  commensurate  with 
the  privation,  for  that  was  the  proper  consequence  of  the  plaintiff  's  misconduct,  and 
might  have  followed,  though  the  fact  had  not  been  disclosed  by  the  defendant;  it 
ought,  in  justice,  to  be  proportioned  to  the  probability  that  the  wrong  doer  would 
otherwise  have  enjoyed  impunity.  If  A.  were  to  commit  a  crime,  and  B.  were  to 
publish  the  fact,  in  consequence  of  which  A.  suffered  loss  and  imprisonment,  it 
would  manifestly  be  unjust  that  B.  should  make  full  compensation  to  A.  for  that  con- 
sequence, where  a  great  probability  existed  that  the  same  consequences  would  have 
followed  from  inquiry  and  detection  in  the  ordinary  course  of  justice. 

Vol.  I.  12 


U  PRELIMINARY  DISCOURSE. 

Another  objection  to  the  admitting  the  action  for  damages,  where 
the  communication  is  true,  must  be  confined  to  those  cases  where 
the  municipal  law  annexes  any  legal  quality  or  efficacy  to  character, 
as  the  law  of  England  does,  where  it  admits  evidence  of  good  char- 
acter, as  tending  to  diminish  the  probability  of  guilt  on  a  trial  for  a 
crime.  It  would  be  in  the  highest  degree,  inconsistent  and  absurd, 
that  the  law  should,  in  the  first  place,  secure  to  every  man  a  good 
character  whether  he  really  deserved  it  or  not,  and  should,  in  the  next 
place,  make  that  good  character  to  operate  as  evidence  of  his  inno- 
cence.     In  strictness,  indeed,  general  reputation,  as  to  character  in 

society,  would  cease  to  exist,  as  soon  as  mankind  were 
[  "lii  ]        enjoined  to  observe  *perpetual  silence,  as  to  all  which 

any  member  of  that  society  had  done  amiss. 
Cases  of  hardship  may  still  be  urged  where  no  public  benefit  can 
arise  from  exposure,  and  where  the  suffering  party  is  deprived  of 
advantages  which  he  might  legally  have  enjoyed.  For  instance, 
where  a  delinquent  has,  by  many  years  of  penitence  and  good  con- 
duct, retrieved  his  character  in  society,  to  give  a  wanton,  unecessa- 
ry,  and  renewed  publicity  to  the  circumstances  of  his  offence,  whilst 
it  would  overwhelm  him  with  disgrace  and  ruin,  might  be  productive 
of  no  real  benefit  to  the  public.  And  it  may  be  urged,  that  the 
affording  a  possibility  to  those  who  have  acted  criminally,  of  re- 
trieving their  errors  and  reinstating  themselves  in  society  by  a 
course  of  good  conduct,  is  to  hold  out  a  temptation  favourable  to  the 
interests  of  morality.  To  a  certain  extent,  and  in  a  moral  point  of 
view,  such  observations  are  well  founded ;  they  afford,  however,  too 
uncertain  and  indefinite  a  foundation  even  for  a  particular  and  lim- 
ited exception  to  a  general  rule,  still  less  do  they  warrant  a  total 
rejection  of  that  rule.  How  could  such  an  exception  be  limited 
and  defined  ?  How  many  years  of  abstinence  from  crime,  or  even 
of  positive  good  conduct,  shall  be  sufficient  to  purify  the  tainted  rep- 
utation of  a  criminal  ?  At  what  period  shall  the  law  ordain  that 
bis  misconduct,  though  not  forgotten,  shall  no  longer  be  mentioned, 
and  ever  after  enjoin  perpetual  silence,  under  the  penalty  of  an 
action  for  damages,  to  which  truth  shall  afford  no  answer  ?  Must 
not  the  period  be  proportioned  to  the  nature  and  heinousness 
of  the  offence  ?      Were  such  a  limitation  practicable,   would  not 


PRELIMINARY  DISCOURSE.  Ui 

many  a  villain  derive  a  sanction  and  protection  from  *the  [  •liii  ] 
law,  though  his  vices  were  latent,  not  eradicated,  and 
would  not  numerous  opportunities  of  doing  harm  be  afforded  by  im- 
posing silence,  which  would  have  been  excluded  by  exposure.  It  is 
in  all  cases  dangerous,  frequently  fallacious,  to  draw  general  conclu- 
sions from  cases  of  individual  hardship ;  in  the  present,  it  may  well 
be  questioned,  whether,  even  in  the  particular  instances  adduced  as 
examples,  the  community  would  derive  no  benefit  from  publicity,  and 
whether  a  delinquent,  under  any  circumstances,  or  at  any  time,  has, 
in  point  of  moral  justice,  a  claim  to  be  placed  in  the  same  situation, 
as  to  character,  with  those  who  have  never  offended. 

It  may,  perhaps,  be  objected,  that  several  of  the  arguments  which 
have  been  thus  used  in  support  of  the  general  position,  that  the  pub- 
lication of  truth  can  in  no  case  warrant  an  action  for  damages,  as- 
sume that  the  complainant  is  in  law  or  morals  a  delinquent^  but  that 
it  frequently  happens  that  a  man's  interests  may  be  seriously  affect- 
ed, and  his  comforts  and  happiness  greatly  diminished  by  the 
publication  of  that  which  is  true,  but  which  is  not  imputable  to  him 
as  a  fault.  This  may  readily  be  admitted,  and  it  may  be  added, 
that  a  man  sins  grievously  against  morality,  who,  for  the  purpose  of 
creating  misery,  publishes,  concerning  another,  even  that  which  is 
true;  but  it  is  to  be  recollected,  that  the  question  at  present  is  not 
as  to  the  moral,  or  even  legal  delinquency  of  on?  who  publishes  the 
truth,  with  a  malicious  design  to  create  mischief,  but  whether  the 
party,  concerning  whom  nothing  more  than  the  truth  is  published, 
has  such  a  right  to  privacy  and  concealment,  as  shall,  even  in  point 
of  reason  and  natural  justice,  entitle  him  to  a  com- 
pensation in  damages  from  one  who  publishes  *the  fact.  [  *liv  ] 
Now,  it  may  be  observed,  in  addition  to  any  arguments 
derived  from  considerations  of  external  policy  and  regarding  the 
question  merely  in  reference  to  the  right  to  civil  remuneration,  that 
if  any  injury  or  inconvenience  accrue  from  publicity,  in  such  a  case, 
it  must  consist  either  in  a  mere  injury  and  annoyance  to  the  feelings 
of  the  complainant,  from  a  sense  of  wounded  delicacy,  or  in  the  in- 
tercepting and  preventing  some  collateral  benefit,  which,  but  for  the 
publication  of  the  fact,  would  have  accrued  to  the  party  whom  it 
concerns.     In  the  first  place,  a  mere  injury  to  the  imagination  or 


liv  PRELIMINARY  DISCOURSE. 

feelino-s,  however  malicious  it  may  be  in  its  origin,  or  painful  in  its 
consequences,  is  not  properly  the  subject  of  a  remedy  by  an  action 
for  damages  ;  such  offences  being  unconnected  with  any  substantive 
rii^ht,  are  incapable  of  pecuniary  admeasurement  (c?)  and  redress  ; 
they  admit  of  no  exact  definition,  and  therefore,  to  extend  a  remedy 
to  such  injuries  generally,  would  be  productive  of  great  uncertainty 
and  inconvenience,  and  open  far  too  wide  a  field  for  litigation  (g). 
In  the  next  place,  it  seems  to  be  clear,  that  a  party  who  acquires  an 
advantage  by  concealing  the  truth,  which  he  could  not  have  attained 

to  had  he  divulged  it,  so  far  is  guilty  of  fraud  in  the 
[  *lv  ]         concealment,  that  he  cannot,  upon  any  *principle,  claim 

a  right  to  acquire  that  benefit,  and  therefore,  cannot  com- 
plain that  he  is  injured  by  a  publication  of  the  truth. 

By  way  of  illustration,  let  it  be  supposed  that  a  banker,  being  re- 
duced to  the  brink  of  bankruptcy  by  unavoidable  misfortunes,  a 
friend,  in  ignorance  of  his  circumstances,  offers  to  deposit  in  his  hands 
a  large  sum  of  money,  but  that  the  friend  is  prevented  from  doing  so, 
in  consequence  of  a  report  from  some  third  person  that  the  banker  is 
insolvent.  Ought  the  latter  to  recover  damages  ?  What  has  he 
lost  but  an  opportunity  of  committing  a  gross  deception,  by  receiving 
the  money  under  a  fraudulent  concealment  of  his  circumstances  ;  if 
he  could  not  honestly  have  availed  himself  of  the  other's  ignorance 
of  the  real  state  of.  his  affairs,  it  is  obvious,  that  he  has  not  sustain- 
ed any  moral,  still  less  any  legal  injury  from  the  disclosure. 

Again,  suppose  that  one  who  labored  under  a  latent  and  personal 
defect,  or  who  was  subject  to  some  hereditary  malady  or  disease, 
was  prevented  from  forming  an  advantageous  marriage  by  the  dis- 
closure of  the  secret  by  a  third  person,  though  a  publication  of  the 
truth  might  be  most  offensive  to  the  feelings,  yet  could  it  be  said  that 
any  advantage  had  been  lost  to  which  the  complainant  was  morally 

{d)  To  such  an  extent  is  this  principle  carried,  by  the  law  of  England,  that  most 
offensive,  provoking,  and  insulting  charges  may  be  made  orally,  which  are  not  the 
subject  of  an  action,  even  though  they  are  absolutely /a/se.  To  charge  a  man  with 
mere  immoral  conduct,  however  gross,  would  not  be  actionable  in  the  absence  of 
special  damage,  though  the  imputation  were  falsely,  as  well  as  maliciously  made,  see 
above,  xxxi,  note  {v) 

(e)  See  above,  p.  xxviii. 


PRELIMINARY  DISCOURSE.  Iv 

ov  conscientiously  entitled  ?  Once  more,  if  a  patron  were  to  offer 
preferment  to  a  party,  under  the  erroneous  supposition  that  he  was  a 
relation,  when,  in  fact,  the  party  to  whom  the  offer  was  made  well 
knew  that  he  was  no  relation,  and  that  the  offer  resulted  from  mis- 
take, would  it  not  be  dishonourable  and  immoral  to  avail  himself  of 
an  intended  kindness,  which  was  founded  in  mere  error  ? 
In  these  and  all  similar  cases,  where  the  *advantage  [  *lvi  ] 
could  not  have  been  obtained,  but  through  the  medium 
of  fraud,  morally  speaking,  it  seems  to  be  obvious  that  no  interest 
exists  which  can  be  noticed  even  as  a  moral,  still  less  as  a  legal  rio-ht. 
To  recognize  such  rights,  would  as  little  consist  with  the  principles  of 
morality  as  of  political  expediency,  for  the  natural  and  obvious  effect 
would  be  to  lend  a  legal  sanction  and  encouragement  to  the  commis- 
sion of  fraud,  by  rendering  the  practice  more  easy,  and  by  affording 
a  premium  to  the  party  who  attempted  it,  even  in  case  of  failure  (/). 
Finally,  to  make  the  truth  operate  merely  as  a  qualified  defence, 
never  singly,  but  occasionally,  in  conjunction  with  other  circum- 
stances, were  the  practice  even  more  consistent  with  the  prin- 
ciples of  natural  justice  than  it  seems  to  be,  would  be  productive  of 
great   inconvenience  (^).     Happily,   the    ancient  and  undeviating 

(/)  In  one  instance,  at  least,  the  presumption  of  solvency,  on  the  part  of  a  purchaser 
as  the  tacit  condition  of  the  contract,  is  recognized  by  the  law  of  En<iland.  Every 
man  (according  to  Lord  Kenyon,)  who  contracts  to  supply  another  with  goods,  acts 
on  the  presumption,  that  that  other  is  in  a  condition  to  pay  for  them  ;  and,  therefore 
when  the  condition  of  the  consignee  is  altered  at  the  time  of  delivery,  and  he  is  no 
longer  capable  of  performing  his  part  of  the  contract,  honesty  and  good  faith  require 
that  the  contract  should  be  rescinded  ;  and  on  this  footing  that  learned  judge  placed 
the  doctrine  as  to  the  right  of  seizing  goods  sold  to  a  bankrupt  or  insolvent,  when  the 
vendor  is  able  to  do  so  whilst  they  are  in  transitu,  before  they  have  actually  come  into 
the  possession  of  the  purchaser. 

(g)  Mr.  Borihwick,  in  his  late  excellent  work  on  the  Law  of  Libel  in  Scotland, 
with  a  very  natural  bias  in  favour  of  the  laws  of  his  own^country,  combats  the  position, 
that  the  truth  ought  to  be  an  absolute  bar  to  the  claim  for  damages,  with  great  force 
and  great  ability.  He  urges,  that  the  reason  given  by  Sir  W.  Blackstone,  for  refus- 
ing the  action  for  damages  where  the  imputation  is  true,  viz.  that  the  public  are  bene- 
fited by  this  disclosure,  is  inconsistent  with  the  doctrine  of  the  law  of  England,  that  a 
libel,  though  true,  is  punishable  criminally.  Now,  certainly,  if  the  reason  for  denying 
the  civil  remedy,  in  such  a  case,  really  were  that  of  the  civil  law,  that  is,  the  public 
benefit  resulting  from  the  publication,  there  would,  no  doubt,  be  ground  for  charging 
the  law  of  England  with  inconsistency  in  this  respect;  that,  however,  is  not  the  reason. 


Ivii  PRELIMINARY  DISCOURSE. 

[  "Ivii  ]  'rule  of  the  English  law  on  this  point  has  protected  ua 
from  an  actual  and  intimate  knowledge  of  difficulties,  the 

[  *lviii  ]  *reality  of  which  may  be  collected  from  the  experience 
of  others. 

or,  at  all  events,  not  the  prinripal  reason  on  which  the  law  of  England,  proceeds.  The 
principles  on  which  the  law  of  England,  in  such  cases,  denies  the  right  to  damagns,are 
the  plain  and  obvious  ones,  that  the  fraud  or  deceit,  which  is  of  the  essence  of  the 
wrong,  is  wanting  ;  that  no  man  can  have  a  right  to  recover  damages  in  respect  of  the 
puhiication  of  his  own  misconduct,  and  perhaps  even  more  generally,  that  no  one  can 
have  a  legal  right  or  interest  in  the  suppression  of  truth.  The  negation,  therefore,  of 
the  civil  remedy  is  perfectly  consistent  with  the  infliction  of  punishment,  the  public 
maybe  injured  where  the  individual  has  no  claim  to  damages.  Ifa  man  were  to 
wound  an  outlaw,  the  latter  could  claim  no  damages;  and  yet  the  former  would  be 
worthy  of  punishment,  for  the  wanton  outrage  he  had  committed  against  the  public 
peace.  Mr.  Borlhwick  further  observes,  that  the  truth  of  the  charge  is  no  just  guage 
of  the  injury  done  by  the  libel  or  slander,  that  though  the  tradesman  is  proved  to  be  a 
bankrupt,  or  the  physician  a  quack,  great  injury  may  have  been  done  to  the  tradesman 
or  physician,  by  the  information  being  more  widely  circulated  than  it  otherwise  would 
have  been.  The  answer  is,  that  the  denial  of  the  remedy  by  the  law  of  England  is 
not  founded  upon  the  supposition,  that  no  harm  or  loss  has  accrued  from  the  publica- 
tion of  the  truth,  but  on  the  injustice,  or,  at  least,  the  impolicy  of  permitting  the  party 
who  has  sustained  the  loss,  of  recouping  it  in  damages  from  one  who  has  spoken 
merely  the  truth.  The  law,  in  such  cases,  admitting  the  damnum  or  loss  to  have  been 
sustained,  denies  the  existence  of  the  injuria,  the  violation  of  any  right  which  the 
plaintiff  had. 

Again,  IMr.  Borthwick  argues,  that  as  it  is  by  the  indiscretion,  or,  at  least,  by  the 
malice  of  the  defender,  that  his  liability  is  to  be  judged  of,  although  the  truth  of  the 
charge  were  proved,  and  if  no  other  circumstance  but  the  truth  were  required  to  com- 
plete the  justification  of  the  defender,  he  might  be  absolved  from  the  action,  though 
the  greatest  degree  of  both  culpability  and  malice  had  actuated  his  conduct.  This 
objection,  on  the  score  of  inconsistency,  obviously  assumes,  that  the  law  of  England, 
as  of  Rome,  and,  as  it  seems,  of  Scotland,  regards  the  animus  infamandi,  or  mens 
rea,  as  of  the  essence  of  the  offence,  and  it  admits  of  two  answers  ;  1st,  the  law  of 
England,  with  a  view  to  the  civil  remedy,  principally  regards  the  loss  or  damage  to 
the  person  or  estate,  and  not  the  comtumely  of  the  act.  See  Wood's  Ins.  17,  and 
supra,  x.xxi.  note  (a)  ;  infra,  vol.  1,  p.  10,  where  the  act  is  wilful  and  noxious,  malice 
is  but  a  mere  legal  inference  from  the  act,  in  the  absence  of  facts  which  constitute 
an  absolute  or  qualified  justification,  and,  in  many  instances,  an  absolute  justification 
arises  from  the  mere  facts,  and  malice,  however  intense,  creates  no  right  of  action. 

But,  2ndly,  even  were  the  malicious  or  contumelious  intention  of  the  essence  of 
the  wrong,  there  would  be  no  inconsistency  in  repelling  the  action,  under  circumstan- 
ces which,  for  reasons  of  intrinsic  policy,  wurranteJ  the  exclusion.  There  cannot  be 
a  stronger  instance  to  prove  this,  or  one  which  ought  to  weigh  more  with  those  who 
profess  to  adopt  the  civil  law,  than  that  afforded  by  the  civil  law  itself,  which,  though 
it  regarded   the  contumelious  intention,  as  the  very  gist  and  essetjce  of   the  action. 


PRELIMINARY  DISCOURSE.  lix 

*It  may  justly  be  observed,  that  the  principle  of  moral  [  *lix  ] 
justification  is  applicable  only  -where  the  motive  *of  com-  [  *lx  ] 
munication  is  a  benevolent  and  sincere  one,  and  that  to 

civil,  as  well  as  criminal,  seems  to  have  considered  the  truth  of  the  imputation  to  be 
in  itself,  independently  of  the  question  of  intention,  a  decisive  bar. 

In  illustration  of  his  argument,  Mr.  Borlhwick  cites  the  following  decision  of  the 
Parliament  of  Toulouse,  mentioned  in  the  Causes  Celebres,  vol.  6 ;  Histoire  du  Pro- 
ems des  Sieurs  Saurin  &  Rousseau. 

"  Le  parliament  de  Toulouse  a  decide  ainsi — une  fille  qui  auroit  mis  clandestine 
ment  au  jour  un  fruit  de  I'amoura  qui  elle  auroit  conserve  la  vie,  pourroit  se  plaindre 
en  justice  du  meJisant  qui  reveleroit  son  deshonneur,  parceque  la  de'famation  la  de- 
pouille  de  I'honneur  dont  elle  jouissoit  par  un  yaua:  iiire,  mais  7««  ne /a/sojt  tart  a 
personne,  sa  possession  ctoit  legitime  avec  ce  titre  colore.  Le  Fore  interne  s'accorde 
encore  ici  avec  le  fore  externe." 

A  mendlsant,  employed  professionally  and  confidentially,  reveals  the  dishonour  of 
a  young  unmarried  woman,  whom  he  has  secretly  delivered  of  the  fruit  of  an  illicit 
amour,  the  court  decrees,  that  she  is  entitled  to  recover  damages  for  the  mere  def- 
amation, as  contra-disiinguished  from  a  wrong  done  by  the  breach  of  promise  or 
professional  confidence*,  for,  if  the  decision  were  founded  on  the  latter  ground,  it 
would  resolve  itself  into  a  mere  question  of  contract  or  of  professional  duty,  and 
would  be  too  much  limited  in  its  circumstances,  to  be  valuable  as  an  illustration  of  a 
general  principle.  For,  though  the  law  were  to  award  a  remedy  in  such  a  case,  ia 
respect  of  the  breach  of  an  express  or  implied  promise,  or  in  respect  of  the  violation 
of  a  legal  and  professional  duty,  it  would  still  decide  nothing  on  the  great  and  gen- 
eral question,  as  to  the  right  to  damages,  in  respect  of  the  promulgation  of  true  but 
defamatory  matters. 

What,  then,  is  the  force  of  the  reasons  alleged  for  the  decision  ?  That  the  com- 
plainant being  in  possession  of  a  character  to  which  she  has  no  title,  the  law  ought 
to  protect  that  title,  because  the  possession  of  it  injures  no  one.  But  may  not  un- 
deserved character  be  injurious  to  others,  may  it  not  enable  a  profligate  woman  to 
form  connections,  even  that  of  marriage  itself,  and  thus  to  practice  a  cruel  deceit 
tinder  the  mask  of  virtue  ;  may  she  not,  under  the  same  false  colour,  be  enabled  to 
contaminate  the  principles  of  others  of  her  own  sex  ;  is  no  injury  done  in  causing  a 
woman  of  abandoned  principles  to  be  received  and  accepted  into  the  bosom  of  so. 
cicty,  as  a  person  of  unblemished  reputation  ?  ,But  even  admitting  that  the  charac- 
ter injured  no  one,  does  it  follow  that  the  law  ought  to  protect  it ;  would  it  not  be 
impolitic  to  give  protection  and  encouragenent  to  laxity  of  moral  conduct ;  would 
not  the  affording  it  he,  pro  tayito,  to  remove  a,  great  and  efficacious  restraint  on  im- 
morality, the  dread  of  censure  and  exposure  1  Again,  how  can  a  false  title  to  char- 
acter give  a  real  title  to  damages  for  the  loss  of  that  character  '?  Let  us  suppose 
that  one  of  the  most  injurious  consequences  that  can  result  from  such   defamation 

*  By  the  Code  penal  of  France,  art  3.58.  physicians,  surgeons,  midwives,  &c.  who 
reveal  secrets  confided  to  them  in  their  respective  capacities,  (except  in  cases  where 
the  law  compels  them  to  the  contrary,)  are  liable  to  imprisonment. 


Ixi  PRELIMINARY  DISCOURSE. 

[  *lxi  ]      publish  even  the  truth,  with  a  malicious  intention  *to  cre- 
ate misery,  is,  in  foro  conscientice,  an  immoral  act ;  this 

has  actually  been  occasioned  by  the  publication,  viz. :  that  the  party  has  lost  the  ben- 
efit of  an  advantageous  marriage  ;  yet  what  legal  ground  of  complaint  can  there  be 
in  losing  that  which  could  not  have  been  gained  but  by  a  base  and  fraudulent  con- 
cealment. No  laws,  either  municipal  or  moral,  could  contemplate  any  right  or  in- 
terest in  a  contract  made  under  such  circumstances  ;  the  complainant  would  there- 
fore have  lost  nothing  which  the  law  could  recognise  as  the  object  of  legal  protec- 
tion. She  would,  in  etfect,  have  lost  nothing  bat  the  opportunity  of  doing  an  injury 
by  means  of  a  fraudulent  concealment  of  the  truth.  It  is  further  observed,  that  the 
decision  is  in  consonance  with  the  feelings  {le  fore  interne)  of  mankind.  The  feel- 
ings of  individuals  constitute,  however,  but  a  very  indifferent  forum  for  the  decision, 
of  cases  where  the  judgment  is  liable  to  be  warped  by  the  particular  circumstances 
in  opposition  to  the  general  rules,  which  in  their  constant  and  uniform  application, 
conduce  to  public  happiness.  The  conduct  of  a  professional  man,  who  betrays  such 
a  secret  is,  no  doubt,  most  dishonorable,  unprofessional,  and  immoral,  such  as  is 
calculated  to  excite  a  sense  of  the  highest  indigination  ;  but  does  it  therefore  follow, 
that  it  would  be  wise  to  award,  on  that  account,  o  compensation  in  damages,  and  to 
establish  a  general  precedent  on  the  particular  hardship,  without  any  consideration 
of  the  general  principles  on  which  the  claim  to  damages  ought  to  be  founded? 
Still  less  would  it  follow  that  a  remedy  ought  to  be  given  against  one  who  had  pub- 
lished the  fact,  without  being  guilly  of  any  breach  of  professional  confidence. 

Besides,  it  is  easy  to  see  that  the  moral  sense  of  mankind  would  afford  no  gene- 
ral  rule  for  the  exclusion  of  the  truth,  as  a  defence,  but  rather  the  contrary.  Let 
it  be  supposed,  for  instance,  that  the  complainant  had  been  guilty,  not  as  in  the 
case  cited,  of  a  single  deviation  from  the  paths  of  virtue,  but  that  she  had  led  a  life 
of  vice  and  depravity  in  a  distant  country,  would  not  the  moral  sense  of  society 
condemn,  rather  than  approve,  the  law  which  allowed  her  to  recover  damages 
against  one  who  had  merely  put  society  on  their  guard,  by  publishing  her  true  char- 
acter 1  Would  not  men  question  the  wisdom  of  a  law  which  enabled  one  who  had 
led  an  impure  and  profligate  life,  to  recover  damages  for  a  reflection  on  her  chasti- 
ty 1  Is  any  man's  mind  so  constituted  as  to  think  it  just  or  reasonable  that  a  mur- 
derer should  recover  damages  from  one  who  had  published  his  guilt,  even  malicious- 
ly ■? 

It  follows,  then,  that  if  the  mere  moral  sense  does  not  always  approve  such  a  de- 
fence, it  is,  at  all  events,  far  from  sanctioning  the  general  exclusion.  Where  then 
is  the  line  to  be  drawn "?  Mr.  Borthwick  concludes  his  argument  with  these  obser- 
vations.—  "If  a  person  is  not  placed  in  one  of  the  situations  which  are  called  privi- 
leged, or  unless  he  can  show  that  what  he  said  was  uttered,  for  the  purpose  of  pro- 
mating  convivialitt/ or  amusement,  or  in  consequence  of  passion,  intbnety,  or  such  tern, 
porary  excitement ;  and  yet  shall  be  exculpated  in  every  case  from  an  action  of  dam- 
ages, for  having  defamed  an  individual,  merely  by  proving  that  his  expressions  were 
true,  there  seems  for  the  reasons  above  assigned,  not  only  to  be  an  inconsistency  in 
the  application  of  the  legal  reasoning  that  supports  such  a  doctrine,  but  the  practical 
consequence  would  seem  to  lead  to  no  other  alternative  than  to  pass  with  impunity 


PRELIMINARY  DISCOURSE.  Ixii 

is  true,  but  this  is  one  of  the  numerous  cases  *where  it  [  'Ixii  ] 
is  questionable  -whether  legal  can  be  made  to  coincide 

every  act  of  cold-blooded  calumny,  provi.lcd  only  that  itbe  ^roun'lcd  on  a  trne  state- 
ment, however  prejudicial  that  statement  might  be  to  the  sufferer,  and  however  un- 
provoked, officious,  and  malevolent  it  mi.:ht  be  on  the  pun  of  its  author." 

Upon  tliese  latter  comments,  it  may  suffice  to  remark,  that  the  supposed  inconsis- 
tency of  the  doctrine  of  the  English  law  on  this  subject  havini,'  been  already  observed 
on,  ii  would  be  superfluous  to  reiterate  any  observations  on  that  subject.     But  it  is  to 
be  most  emphatically  observed,  that  the  praclirnl  consequence  alleged  to  result  from 
the  doctrine  of  the  law  of  England,  that  truth  shall  be  a  bar  to  the  action  for  dama- 
ges, by  no  means  follows.     It  is  to  be  recollected,  that  the  criminal  and  civil  wrongs 
are  not  mixed  and  complicated    with  each  other  by  the  law  of  England,  as  they  are 
both  by  the  civil  law  and  the  law  of  Scotland,  and  that,  though  the  law  of  England, 
with  cool,  cautious,  and  steady  adherence  to  a  general  principle,  universally  repels 
the  action  for  damages,  where  the  imputation  is  true ;  yet  that  the  same   law  visite 
every  malicious  libeller  with  penal  censures,  without  regard  to  the  truth  or  f^\lsity  of 
the  libel.     It  may,  indeed,  readily  be  admitted,   that  a  man  may   indulge  a  wicked 
and  malicious  spirit,  in  pub!i^hing  the  truth,  without  incurring  any  liability  to  dam- 
ages, according  to  the  law  of  England  :  but  what  is  the  sum  and   substance  of  this 
objection  ?  simply  this,  that  the  law  does  not  award  damages  to  be  recovered  in  re- 
spetl  of  an  imputation  truly  made,  merely   because  it  has  been  maliciously  and  im- 
morally  made.     This   ground  of  complaint  against  the   law,   taken  in  the  abstract, 
avails  nothing  ;  it  is  impossible    that  the  municipal  should  be  coextensive  with  the 
moral  law,  so  as  to  subject  the  author  of  every   malicious  and  immoral  act,  to  a  civil 
action  for  damages.     The  very  extent  to  which  such  an  objection  might  be  pushed  in 
effect  refutes  it ;    if  the  suflering  of  a  guilty  party  from   publicity  and   cold-blooded 
malice  on  the  part  of  the  publisher,  give  a  claim  to  compensation,  it  ought  to  be  given 
even  where  a  malicious  party  prosecutes  and  convicts  the  offender   according  to  law, 
or  publishes,  that  such  a  con\iction  has  actually  taken  place,  for  many  cases  might 
be  put  where  such  a  proceeding  would  bo  harsh,  vindictive,  and  oppressive.    Neither 
is  there  any  inconsistency  in  the  application  of  the  general  principle  of  English  lavir 
to  the  particular  case,  for  the  ground  of  compcnsa'ion  is  loss  or  damage,  in  respect  of  a 
fraudulent  or  negligent   misrepresentation.     The  question  then  is,  whether   that  gen- 
eral principle  be  a  correct  one,  and  whether  the  truth  of  the  fact  ought  to  repel  an  ac- 
tion for  defamation,   without  regard  to  the  malice  of  the  publisher,  and   this,  as  has 
been  seen,  is  an  important  question,  to  be  determined,  not  by  a  few  instances  of  hard- 
ship which  may  fall  on   penitent  offenders,  but  on  general  considerations  of  public 
policy.     Those  considerations  seem  to  weigh  strongly  in  favour  of  making  truth  an 
absolute  bar  to  compensation,  both   because  the  falsity  of  the  charge  is  the  true  prin- 
ciple of  civil  liability,  and   because  it  would  be  impolitic  too  nitely  to  scrutinize  the 
motives  of  those  who  had    exposed  delinquents,  and   impracticable  to  lay  down  de- 
finite rules,  which  would  admit  such  a  remedy  in  cases  of  hardship  and  malice,  with- 
out, at  the  same  time,  affording  protection  and  encouragement  to  those  guilty  of  the 
moat  heinous  and   detestable  crimes.    If  this  be  an  error  in  our  national  jurispru- 

VoL.  I.  13 


\jg^  PRELIMINARY  DISCOURSE, 

[  *lxiii  ]     with  moral  boundaries.     It  is  frequently  difficult  *to  as- 
certain the  true  motive  of  an  act  which,  in  its  nature, 

dence.it  is  one  which,  to  a  great,  though  not  perhaps  the  same  extent,  is  attributable 
to  the  laws  of  Athens,  Rome,  and  modern  Trance. 

Assuming  that  the  policy  of  the  English  law,  in  this  respect,  is  doubtful ;  what  is 
the  alternative  proposition  ?  not  to  reject  the  truth  as  immaterial  to  the  defence ; 
that  is  not  contended  for,  but  that  the  truth  shall  be  available  with  certain  other  cir- 
cumstances, which  ingredients  shall,  in  their  union,  supply  a  full  and  complete  justi- 
fication. Now,  the  very  instance  of  Scotland  herself,  whose  laws  on  this  subject  Mr. 
Borthwick  has  with  great  learning  and  great  ability  both  expounded  and  defended, 
affords  a  very  strong  illustration  of  the  difficulty  of  establishing  precise  and  definite 
rules  on  such  principles.  Mr.  Borthwick,  Avith  great  candour,  observes,  that  "  law- 
yers of  the  greatest  eminence  have  differed,  and  may  continue  to  differ,  from  each 
other  on  this  subject,  some  of  whom  have  thought  that  our  law  (i.  e.  of  Scotland) 
has  not  yet  arrived  at  that  degree  of  maturity  which  can  put  us  in  possession  of  a 
general  rule.  Future  decisions  will  remove  this  difficulty."  Certainly,  the  decisions 
of  the  Scotch  courts,  which  Mr  Borthwick  has  collected,  conflict  too  much  too  yield 
any  certain  and  definite  rule;  and  it  is  observable,  that  in  two  of  them,  viz.  Scott  v. 
Baillie,  Berth.  268,  and  Fife  v.  Fife,  ib.  272,  the  plea  of  the  truth  was  allowed  to 
constitute  a  full  defence.  In  the  former  case,  the  defender,  Mrs.  Baillie,  had  publicly, 
at  an  assembly,  asserted,  that  the  pursuer  had  for  a  long  time  been  a  woman  of  gal- 
lantry. Mr.  Borthwick  observes,  that  this  case  was  afterwards  disapproved  of,  in 
Ross  V.  Mackerrell  (Borth.  349.)  :  in  that  case  the  president  took  occasion  to  say, 
that  in  the  case  of  Chalmers,  widow  of  Scott  v.  Baillie,  no  proof  of  the  Veritas  con- 
vicii  should  have  been  allowed,  but  that  there  was  no  general  rule  upon  the  subject. 
In  the  case  oi  Fife  y.  Fife,  (Borth.  272,)  Fife  pursued  one  of  her  neighbours  for 
damages,  for  saying  that  she  kept  a  house  of  had  fame  ;  the  defender  averred  that  it 
was  true.  A  proof  was  allowed,  and  having  proved  the  fact  accordingly,  the  defend- 
ant was  assoilzied.  Mr.  Borthwick  observes,  that  in  this  case  the  proof  of  Veritas 
was  properly  admitted,  because  it  was  a  public  duty,  not  a  malicious  act,  to  expose 
the  pursuer.  It  would,  however,  be  very  difficult  to  establish  any  definite  limit  on 
the  distinction  between  those  offences  which  it  was  a  public  duty  to  expose,  and, 
consequently,  where  the  Veritas  convicii  ought  to  be  allowed,  and  those,  in  the  ex- 
posure of  which  the  public  had  no  interest.  Mr.  Borthwick  also  suggests  that,  even 
admitting  Chalmers^  case  to  be  an  authority,  as  far  as  oral  slander  is  concerned,  yet  it 
is  not  an  authority  in  case  of  libel  which  differs  essentially  from  oral  slander;  and  he 
refers  to  the  law  of  England  in  support  of  this  distinction,  observing,  that  it  was  not 
until  the  middle  of  the  last  century  permitted  to  a  defendant  to  justify,  in  the  case  of 
written  slander,  (citing  Lord  Hardwick's  dictum,  in  the  King  v.  Roberts,  Selwyn's 
N.  P.  986.)  The  notion,  however,  that  by  the  law  of  England  a  justification  of  the 
truth  cannot  be  pleaded  to  a  civil  action  for  a  libel  has  long  been  exploded,  and  not 
only  so,  but  the  soundness  of  the  distinction  of  the  law  of  England,  in  considering 
that  to  be  actionable,  when  written,  which  would  not  have  been  so  if  merely  spoken, 
has  been  questioned  by  some  of  the  best  English  lawyers.  And  though  that  doctrine 
of  English  law  is  now  too  firmly  established  to  be  shaken,  there  can  be  no  doubt  that 


PRELIMINARY  DISCOURSE.  Ixiv 

may  be  attributable  either  to  a  good  or  bad  motive  ;  *in  [  *lxiv  ] 
such  case,  it  may  be  far  better  policy  at  once  to  pre- 

it  is  an  anomaly  which  has  arisen  from  adopting  the  civil  law  doctrine  as  to  libels, 
according  to  which,  personal  indignity,  insult,  and  contumely,  are  the  proper  foun- 
dation of  the  action,  whilst,  according  to  the  ancient  principles  of  English  law,  the 
loss  or  damage  to  the  party  grieved,  either  actual  or  presumed,  is  the  real  foundation 
of  the  civil  remedy.  Mr.  Borthwick,  indeed,  as  has  already  been  observed,  very  just- 
ly attributes  much  of  the  uncertainly  which  has  prevailed  on  the  subject  of  tlie  Veri- 
tas convicii,  as  well  in  England  as  in  Scotland,  to  the  conflicting  and  unsatisfactory 
opinions  of  the  commentators  of  the  Roman  law.  Borth.  p.  244.  Be  this  as  it  may 
it  is  very  difficult,  on  any  certain  principles,  to  admit  the  Veritas  convicii  as  an  abso- 
lute bar  to  oral  slander,  and  yet  to  reject  it  as  an  answer  to  a  libel. 

It  may  be  proper  to  observe,  in  this  place,  that  Mr.  Borthwick,  in  the  course  of 
his  concluding  remarks,  seems  to  have  assumed  (agreeably  to  the  civil  law,  probably 
also  to  the  lav/  of  Scotland,)  that  proof  that  a  defendant  uttered  the  defamatory  mat- 
ter, complained  of  for  the  purpose  of  promoting  conviviality  or  amusement,  or  in  con- 
sequence of  passion,  inebriety,  or  such  temporary  excitement,  would,  by  the  law  of 
England,  furnish  a  defence  to  the  action  for  damages.  The  law  of  England,  however, 
does  not  sanction  such  a  doctrine,  and  on  this,  as  well  as  on  many  other  occasions, 
may  well  boast  a  superiority  over  that  code  which  our  ancestors  so  wisely  refused  to 
adopt.  Upon  what  principles  of  reason  or  natural  justice,  or  even  of  artificial  policy, 
is  a  man  to  be  excused  from  answering  in  damages,  where  he  has  knowingly  and 
wilfully  occasioned  mischief  to  another,  because  he  did  it  for  his  own  amusement,  or 
because  he  was  drunk,  or  excited  by  passion.  It  is  for  the  law  to  define  the  rights 
of  individuals,  but  when  defined,  nothing  can  be  more  clear,  in  point  of  reason  and 
natural  justice,  than  that  a  remedy  ought  to  be  given  in  respect  of  every  wilful  inva. 
sion  or  aggression  of  those  rights.  Is  it  not  plain,  that  when  the  right  to  reputation 
and  character  is  once  recognized  by  the  law,  every  wilful  redemption  of  a  character 
ought  to  confer  a  title  to  damages,  as  well  as  in  every  other  instance  of  the  violation 
of  a  recognized  legal  right.  What  legal  excuse  or  justification  then  can  arise  from 
the  consideration,  that  a  man  in  depriving  another  of  character,  by  casting  the  most 
odious  imputations,  on  him,  did  it  because  he  was  in  jest,  or  was  drunk  1  Though 
to  himself  it  may  be  matter  of  jest,  to  the  unfortunate  object  of  merriment,  the  cal- 
umny may  be  utter  ruin  ;  though  uttered  in  joke,  the  charge  maybe  reported  and 
believed  in  earnest;  and  intoxication,  so  far  from  taking  away  the  sting  of  the  cal- 
umny, may,  in  some  cases,  according  to  a  vulgar  adage  even  supply  an  inducement 
to  belief,  Finally,  in  support  of  the  consistency  of  the  superior  merit  of  the  law  of 
Scotland,  and  of  its  consistency  with  the  abstract  principles  of  justice  and  equity, 
Mr.  Borthwick  refers  to  Mr.  Fox's  speech  on  the  discussion,  in  the  House  of  Com- 
mons, on  the  Libel  Bill,  May  20,  1791.  Parliamentary  History,  vol.  xxix.  p.  575. 
That  celebrated  orator  and  statesman,  in  his  speech  on  that  occasion,  admitted,  that 
''  there  certainly  were  cases  in  which  truth  would  not  be  a  justification,  but  an  aggra- 
vation. Suppose,  for  instance,  a  man  had  any  personal  defector  misfortune;  any 
thing  disagreeable  about  his  body  ;  or  was  unfortunate  in  any  of  his  relations  ;  and 
that  any  person  went  about  exposing  him  on  those  accounts,  for  the  purpose  of  mal- 


Jxv  PRELIMINARY  DISCOURSE. 

r  *lxv  ]  sume  charitably  in  favour  of  innocency  of  intention,  *thaD 
to  open  a  field  for  litigation.     The  convenience  is  great, 

[  *lxvi  ]  on  the  one  hand,  of  laying  down  a  precise  and  *general 
rule  ;  the  practical  inconvenience  on  the  other,  of  afford- 

r  *lxvii  ]  ing  protection  to  a  malicious  act  is  small,  when  *the  act, 
in  its  own  general  nature  and  effect,  is  beneficial.     At 

ice;  and  that  all  those  evils  were,  day  af.er  day,  brought  forward  to  make  a  man's 
life  unhappy  to  himself,  and  tending  to  hold  him  out  as  the  object  of  undeserved  eon- 
tempt  and  ridicule  to  the  world,  which  was  too  apt  to  consider  individuals  as  con- 
temptible for  their  misfortunes,  rather  than  odious  for  their  crimes  and  vices;  would 
any  man  tell  him,  that  in  cases  of  that  sort,  the  truth  was  not  rather  an  aggravation  1" 
The  justice  of  these  oliservations  is  undeni  ililc  ;  the  truth  of  facts,  which  impute  no 
blame  to  a  party,  who  may,  neveitheless,  be  annoyed  and  irritated  by  the  wanton 
publication  of  those  facts,  can  nfford  no  justification  to  the  aggressor  in  a  moral  point 
of  view.  Truth,  as  well  as  falsehood,  maybe  used  as  the  instrument  of  malice ; 
and,  consequently,  where  the  object  is  to  restrain  such  contumelious  reflections  and 
abuse  by  penal  censures,  it  would  be  absurd  to  make  their  truth  a  defence  upon  a 
criminal  charge.  It  was  in  reference  to  penal  restraints,  that  the  observations  cited 
by  Mr.  Boithwick  were  made  by  Mr.  Fox,  and  upon  this  point  the  law  of  England 
agrees  with  that  of  Scotland.  The  controversy  is  upon  the  question,  what  effect 
ought  to  be  attributed  to  the  truth  of  the  imputation,  where  the  complainant  demands 
a  compensation  in  damages;  here  it  cannot  be  said  that  the  truth  is  an  ags;ravation  ; 
it  would  be  as  contrary  to  the  plainest  principles  of  natural  justice  and  policy,  as  it 
would  be  rcpusnant  to  the  common  sense  and  feelings  of  mankind,  to  say  that  a 
guilty  man  ought  to  recover  larger  damages  for  the  mere  assertion  of  his  guilt,  thaa 
an  innocent  man  ought  to  do,  in  respect  of  unmerited  obloquy,  where  the  moral,  as 
■well  as  legal  wrong,  was  enhanced  and  aggravated  by  base  and  deliberate  falsehood. 
To  the  question,  therefore,  now  under  discussion,  the  observations  alluded  to  in  the 
debate  on  the  Libel  Bill  have  no  application. 

A  comparison  of  the  law  of  England  with  that  of  Scotland,  does  not  permit  the 
advocate  for  the  former  to  object  to  the  latter,  the  repelling  a  defence  founded  on 
the  truth  of  the  libel,  in  the  case  of  a  criminal  prosecution  ;  but  he  may  olject  that 
the  Veritas  convicii  ought  to  be  received  as  a  valid  plea,  in  all  cases  where  the  com 
plainant  sues  for  damages,  and  that  the  law  of  Scotland,  as  well  as  the  civil  law, 
■whence  the  rule  is  derived,  acts  on  a  faulty  principle,  in  constituting  not  the  damage 
to  the  party  injured,  but  the  contumelious  intention  of  the  calumniator,  the  main  test 
for  deciding  on  the  relevancy  of  the  remedial  action  ;  and  certainly  the  law  of  Scot- 
land deviates  from  the  civil  law,  in  not  allowing  the  plea  of  the  truth  to  avail  as  a 
defence,  in  cases  where  the  civil  law,  on  grounds  of  policy,  admitted  that  defence, 
For  the  language  of  the  Digest,  on  this  point,  seems  to  be  too  clear  to  admit  of  seri- 
ous doubt  as  to  its  meaning.  The  rule  and  practice  of  the  civil  law,  in  admitting 
the  truth  to  amount  to  a  substantive  justification  in  the  remedial  action,  agrees,  in 
tiie  main,  with  the  rule  and  practice  of  the  law  of  England.  And,  peihaps  the  very 
circumstance,  that  the  same  practical  conclusion  has  been  derived  by  the  aid  of  dif- 
ferent principles,  might  well  be  urged  as  a  further  argument  in  its  favour. 


PRELIMINARY  DISCOURSE.  Ixvil 

all  events,  the  effect  of  the  objection  is  merely  to  deprive  the  au- 
thor of  the  communication  of  his  moral  defence,  and  leaves  the 
question  upon  considerations  of  general  policy  and  convenience, 
just  as  it  stood  before. 

In  the  next  place,  that  some  communication  of  the  noxious  and 
calumnious  matter  to  a  third  person,  is  essential  to  the  injury,  nec- 
essarily results  from  the  very  notion  of  damage  whether  it  be  actual 
or  inesiimed^  though  the  extent  and  magnitude  of  the  injury  may 
depend  greatly  on  the  nature  of  the  publication.  A  publication,  by 
writing  or  printing,  may,  from  its  widely  extended  circulation  and 
its  permanency,  be  far  mere  injurious  than  one  which  consists  mere- 
ly in  oral  discourse.  A  communication  to  one,  or  a  few  individuals, 
may  be  far  less  injurious  than  if  the  calumny  were  to  be  uttered 
publicly  in  the  presence  and  hearing  of  many. 

Again,  an  oral  insult  may  be  greatly  aggravated,  by  the  consid- 
eration that  it  was  offered  in  a  man's  own  house,  in  the  presence  of 
his  family,  or  before  a  public  assembly  of  friends  or  others  whose 
respect  he  would  be  anxious  to  retain.  As  far,  however,  as  the 
claim  to  damages  is  concerned,  if  there  be  an  actual  publication  of 
the  calumny  to  a  third  person,  (for  that  is  plainly  essen- 
tial to  the  notion  of  damage,  actual  or  presumed,)  *such  [*lxviii] 
circumstances,  Avhatever  their  effect  may  be,  in  enhancing 
the  damage  sustained,  do  not  seem,  in  principle,  to  afford  any  ma- 
terial or  essential  test  for  ascertaining  the  title  to  some  compensation. 
If  any  damage  has  actually  resulted  from  a  publication  to  a  third 
person,  other  circumstances,  constituting  an  aggravation  of  tho 
wrong,  cannot  be  material,  otherwise  than  as  they  affect  the  ques- 
tion of  damages  ;  and  if  damage  be  presumed  in  law,  and  proof  of 
actual  damage  be  immaterial,  still  circumstances  of  extended  pub- 
licity merely  affect  the  question  of  degree,  and  not  the  presumption 
itself.  If  damage  is  to  be  presumed  from  a  publication  to  many 
some  damage  may  also  be  presumed  from  a  publication  to  a  single 
individual,  especially  as  that  individual  may  afterwards  publish  the 
slander  indefinitely.  And,  therefore,  if  the  law  on  a  presumption 
of  a  proljable  damage  constitutes  a  particular  class  of  communica- 
tions substantively  actionable,  though  no  particular  loss  or  damage 
can  be  proved,  it  is  obvious  that  a  communication  to  a  third  person 


Ivii  PRELIMINARY  DISCOURSE. 

is  all  that  is  essential,  and  that  the  mode  and  circumstances  of  com- 
munication do  not  in  themselves  supply  any  obvious  and  natural 
limits  for  defining  the  extent  of  civil  liability  (7i). 

(A)  The  civil  law  made  a  material  distinction,  not  only  between  oral  and  wrlUen 
defamation,  but  even  between  an  injury  by  writing  and  one  by  pictures.  Thus 
Heinecciiis,  Lib.  47.  tit.  10,  in  explaining  the  title  in  theDigest  de  Injuriis  &  Fam- 
osis  Libellis,  observes,  "  injuriam  aliam  esse  verbalem  si  quis  alteri  convicium  ad- 
rersus  bonos  mores  facit  vel  fieri  curat,  aliam  realem  quje  re  et  facto  infertur.  Ad 
priorem  etiam,  injuriam  scriptura,  ad  posteriorem  et  per  picturam  illaia  referlur." 
There  seems,  however,  to  be  little  either  of  principle  or  practical  utility  in  this  dis- 
tinction of  the  civil  law,  which  constitutes  defamation  by  means  of  a,  picture,  a  real 
injury,  whilst  it  regards  a  calumny  in  writing,  though  it  convey  precisely  the  same 
ideas,  and  is  equally  permanent  in  its  nature,  as  a  verbal  one. 

Some  of  the  numerous  commentators  on  the  civil  law  have  reasonably  doubted 
the  propriety  of  this  distinction,  whilst  others  have  as  strictly  maintained  it  :  the 
force  of  their  arguments  may  be  appreciated  from  the  following  example — Slatthaeus 
deCrim.  tit.  de  Injuriis  &  Famosis  Libellis,  c.  1.  s.  1. 

Referenda  hue  et  ilia  (Injuria)  quK  fit  monstrosa  et  infami  pictura,  nee  recte'  qui- 
dem  pictuiam  ad  famosos  Libellos  transferunt  tanquam  muta  imago  non  minus  ac 
lilerae  loquatur :  aut,  ut  auctor  Rhetoricorum  ad  Herrennium  lib.  iv.  scripsit  quod 
pictura  taciturn  poema  sit  :  nam  ea  ratione  injuriam  qua  manu  telove  fit,  ad  scrip- 
tuin  quoque  referrc  posses,  tanquam  et  vulnus  loquatur  et  tubera  capitis  et  vulnere 
obducto  cicatrix. 

It  must,  however,  in  fairness  be  observed,  that  this  passage,  in  which  the  learned 
writer  so  entirely  confounds  the  means  with  the  consequence  of  injury,  is  a  very  un- 
favorable specimen  of  his  justly  celebrated  and  most  useful  treatise.  The  Roman 
law  not  only  recognized  the  distinction  already  mentioned  between  oral  and  written 
defamation,  but  also  distinguished  between  various  circumstances  of  oral  slander.  It 
was  termed  in  some  instances  convicium  in  others  maledictum.—See  Dig.  lib  47,  tit. 
10.  Convicium  proprie  est  (says  Matibaeus)  cum  in  ccetu  aliquid  dicitur  aut  cum 
vociferatione  plurihus  vocibus  in  unum  coUatis  quasi  convocium :  quod  autem  non  in 
ccetu  nee  cum  vociferatione  fit  maledictuni  tamen  est  si  Jit  alversus  bonos  mores  ci- 
vitatis,  d.  1.  15.  §  Convicium  et  §  sive  uaus.  Quinimo  etsi  natura  non  sit  contra 
bonos  mores  civitatis  locus  tamen  et  modus  efficere  possunt  ut  convicium.  Ex.  gr. 
Idoneum  dehitoreniappellare  noa  est  convicium  :  sed  facere  id  in  publico  et  cum  clam- 
ore.  Cedo  fccnus,  redde  foenus,  fcenus  reddite.  Daturine  estis  foenus  actutum 
mihi;  Date  mihi  fcenus  :  convicium  est. 

This  distinction  between  the  mere  maledictum  and  the  convicium,  was  not,  it  must 
be  admitted,  unreasonable,  especially  with  a  view  to  the  protection  of  the  public 
peace  :  many  expressions  may  be  used  in  private,  the  noticing  of  which  would  be  be- 
neath the  di^'uity  of  the  law,  as  being  too  trifling  and  unimportant  to  require  judicial 
cognizance,  and  yet  the  very  same  words  spoken  before  a  large  assembly,  might  not 
only  be  likely  to  j)roduce  serious  and  injurious  consequences  to  the  individual,  but 
also  to  provoke  him  to  acts  of  personal  violence.  The  distinction  between  the  con- 
vicium and  maledictum,  is  not  recognized  by  the  law  of  England. 


PRELIMINARY  DISCOURSE.  Ixix 

*In  the  next  place,  rlo  any  and  what  limitations  natu-    [  "Ixix  ] 
rallv  arise  from  a  consideration  of  the  motive  and  inten- 

In  the  case  of  Jones  v.  Heme,  2  Wils.  87.  Infra.  24.  Willes,  C.  J.  observed,  that 
if  it  were  res  integra,  he  sliould  hold  that  the  calling  a  man  a  rogue,  or  a  woman  a 
whore,  in  a  public  company,  was  actionable.  Yet  his  mode  of  expression  clearly 
showed  that  he  considered  the  law  as  established  to  the  contrary.  And  it  is  not  im- 
probable that  more  would  be  lost  than  gained  by  the  introducing  a  distinction  which 
would  be  subject  to  great  uncertainty.  The  doctrine  of  the  Roman  law,  on  this  sub- 
ject, was  exceedingly  lax  and  indefinite:  every  expression  was  maledictum,  and  ihe 
subject,  as  well  of  a  criminal  as  a  civil  proceediig,  which  was  "  advursus  bonos  mores 
civilatis  "  a  vao-ue  and  uncertain  definition,  as  the  mass  of  comment  which  it  has 
undergone  sufficiently  evinces.  A  host  of  interpreters,  according  to  Mattbeeus,  have 
asserted,  that  to  affirm,  even  truly,  that  a  man  had  but  one  eye,  or  was  bald,  or  lame, 
fell  within  the  scope  of  this  e.xpression.  Again :  to  say  nothing  of  the  difficulty  of 
decidin"-  what  number  of  persons  or  what  circumstances  should  constitute  the  cccius,  or 
what  loudness  of  tone  the  voci/erathn,  the  very  example  adduced  is  sufficient  to 
shew  the  laxity  and  extent  of  the  definition,  when  even  the  demanding  of  a  just  debt 
before  many  witnesses  was  to  be  deemed  to  be  a  contumelious  injury  and  off'ence. 
So  convinced  was  the  commentator  just  cited,  of  the  difficulty  of  deriving  any  certain 
rule  from  the  Digest  on  this  subject,  that  he  concludes  with  the  expression  of  his 
opinion,  that  in  each  case  it  must  be  left  to  the  discretion  of  the  judge  whether 
he  will  interfere  or  not.  Hanc  ob  causam  ego  existimaverim  judicis  potius  judicio 
relinquendum  esse  ut  ex  re  atque  persona  statuat  prffitermitlenda  an  animadvcrtenda 
hujusmodi  sit  contumelia. 

The  law  of  England  has  recognized  but  one  distinction  as  to  the  mode  of  commu- 
nication, that  is,  between  mere  oral  ones,  and  those  effected  by  writing,  printing,  paint- 
ing, or  other  visible  signs.  This  distinction  is,  however,  applied  by  the  law  of  Eng- 
land in  two  instances  of  very  great  importance,  the  one  in  reference  to  civil,  the  other 
in  respect  of  criminal,  liability.  In  the  first  place,  the  circumstance  of  the  calumny 
bein"-  conveyed  in  writing,  print,  &c.  (in  which  case  it  is  termed  a  libel)  is  made  use 
of  to  constitute  a  very  large  and  important  class  of  substantive  injuries,  where  the 
calun  ny  is  by  legal  definition  and  authority  made  actionable,  though  no  actual  dam- 
age can  be  shown.  So  that  although,  in  other  instances,  the  law  limits  such  actions 
as  are  maintainable  wiihout  special  damage  to  particular  and  defined  predicaments 
in  reference  to  the  nature  and  quality  of  the  communication,  and  the  probability  that 
it  will  produce  damage,  though  none  can  be  expressly  proved;  as  where  it  imputes 
the  commission  of  a  crime,  or  immediately  aff'ects  the  complainant,  in  bis  means  of 
livelihood,  yet  in  the  pai;ticular  instance  of  icriUen  slander  the  law  abandons  that 
principle,  and  by  an  arbitrary  distinction,  founded  on  the  mere  mode  of  communica- 
tion, makes  that  to  be  actionable,  without  special  damage,  when  it  is  written  or 
printed,  which  would  not  have  been  deemed  actionable  had  it  been  merely  spoken. 
As  for  instance,  to  charge  a  man  by  word  of  mouth,  with  want  of  veracity,  or  with 
dissolute  conduct,  would  not,  unless  some  special  loss  were  the  consequence,  support 
a  claim  to  damages;  yet  if  the  same  imputation  were  to  be  published  in  writing,  the 
action  for  damages  would  be  maintainable.      This,  however,  must  be  regarded  as  an 


Ixx  PRELIMINARY  DISCOURSE. 

[  *]xx  ]    tion  *of  the  publisher  ;   first,  either  in  the  abstract,  or 
secondly,    taking  into    consideration  the  occasion  and 

absolute  peremptory  rule,  not  founded  on  any  obvious  reason  or  principle.  If  dam- 
age is  to  be  presumed  from  publishing  such  a  charge  in  writing,  w!iy  is  not  &ome 

damage  also  to  be  presumed  from  publishing  the  fact  orally  ?  The  extent  of  publi- 
city, and  quantity  of  damage  to  be  presumed  in  the  one  case,  rather  than  the  other 
is  obviously  casual  and  uncertain,  and  rather  aflects  the  measure  and  quantum  of 
damages  than  any  principle  of  civil  liability. 

Another,  and  that  a  most  important  application  of  this  distinction  between  oral 
and  written  publications,  is  made  by  the  law  of  England  in  the  criminal  branch  of 
the  subject.  In  all  cases  of  mere  personal  calumny,  the  distinction  between  a  writ 
ten  and  an  oral  charge  is  made  the  material  boundary  between  guilt  and  innocence. 
Whatever  tends  to  lower  and  degrade  a  man's  moral  character  in  so(  iely,  or  to  ex- 
pose him  to  contempt  and  ridicule,  is  criminal,  if  it  be  published  in  writing,  although 
the  very  same  matter,  if  spoken  onlj',  would  have  constituted  no  offence.  Here 
again  the  boundary  is  not  founded  on  any  intrinsic  principle  of  criminal  liability  ; 
for  one  great  object  of  the  law  in  prohibiting  the  publication  of  libels  of  this  descrip- 
tion, is  to  exclude  provocations  which  tend  immediately  to  a  breach  of  the  peace, 
and  it  is  obvious  that  oral  abuse,  when  uttered  in  the  presence  of  the  party  defamed 
and  in  the  hearing  of  others,  is  oftentimes  much  more  strongly  provocative  than 
the  same  calumny  would  be,  though  written,  if  published  in  his  absence.  But 
though  such  considerations  clearly  prove  that  the  law  of  England,  if  the  principles 
of  intrinsic  expediency  were  alone  to  be  regarded,  would  be  inconsistent  in  estab- 
lishing a  limit  which  would  so  frequently  admit  the  very  mischief  to  be  guarded 
against,  it  is  to  be  recollected  that  the  expediency  of  a  law  in  reference  to  the  par- 
ticular mischief  intended  to  be  excluded,  is  a  very  different  question  from  its  gene- 
ral expediency,  in  reference  to  extrinsic  circumstances,  which  oftentimes  greatly 
limit  and  restrain  the  generality  of  the  rule  which  would  prevail  were  the  restraining 
of  the  particular  mischief,  the  only  object  to  be  attained. 

It  is  expedient,  no  doubt,  to  restrain  men  from  using  calumnious  and  provoking  ex- 
pressions concerning  others,  but  it  would,  on  the  other  hand,  be  highly  inexpedient 
and  mischievous  to  suljcct  the  ulterer  of  every  expression  which  might  possibly 
provoke  offence  and  retaliation,  and  ultimately  violence,  to  a  penal  prosecution  :  it 
would  be  attended  with  fearful  evils,  legal  as  well  as  moral,  if  men's  mouths  were  to  be 
closed  as  to  all  communications  in  which  the  character  or  reputation  of  others  might 
possibly  be  involved.  What  then  is  to  be  done  if  the  evil  cannot  be  wholly  excluded, 
and  cannot  be  tolerated  without  some  restraints;  a  line  must  somewhere  be  drawn, 
which,  whilst  it  partially  restrains,  at  the  sime  time  partially  admits,  the  evil.  In 
this,  as  in  many  other  instances,  good  and  evil  are  so  closely  and  intimately  blended, 
or  rather  perhaps,  more  properly  speaking,  opposite  mischiefs  so  conflict  and  contend 
together,  that  it  is  impossible  wholly  to  exclude  either  without  increasing  the  whole 
quantity.  In  such  cases  the  important  problem  is  to  discover  the  precise  rule,  which, 
though  it  does  not  entirely  exclude  either  of  the  opposite  and  conflicting  inconve- 
niences, yet  admits  only  the  minimum  of  evil.  It  is  upon  these  plain  and  simple 
grounds  that  the  law  of  England  is  founded,  which,  whilst  it  prohibits  the  publication 


PRELIMINARY  DISCOURSE.  Ixxi 

*  circumstances  of  publishing  ?     There  are  strong  and    [  *lxxi  ] 
powerful  reasons  for  insisting  on  the  general  proposition, 
*that  if  any  man  publish  concerning  another  that  which    [  *lxxii  ] 
in  legal    contemplation  is  injurious  and  actionable,  no 
•limitation,  exemption,  or  privilege,  can  be  founded  on  the  [  *lxxiii  1 
motive  and  intention  of  the  publisher  considered  indepen- 
dently and  abstractedly  from  some  occasion  defined  and  recognized 
by  the  law,  and  supplied  by  the  circumstances.     It  is  an  obvious 
rule  of  natural  justice,  that  wherever  a  man  uses  noxious  and  inju- 
rious means,  he  must  be  presumed  to  have  contemplated  and  intend- 
ed the  injurious  but  natural  consequence  of  using  such  means  (i). 

The  pubUsher  of  a  communication  concerning  another,  which  is  in 
itself  noxious  and  injurious,  must  stand  in  one  or  other  of  these  dif- 
ferent predicaments  as  to  intention  and  motive.  He  may  act  either 
from  a  motive  of  pure  malignity,  as  out  of  revenge  for  some  supposed 
affront ;  or,  secondly,  from  an  honest  and  benevolent  motive,  as  if  a 
father  were  to  warn  a  son  that  one  with  whom  the  latter  was  about 
to  contract  a  partnership  was  insolvent,  or  a  man  of  dis- 
honest principles  ;  or,  thirdly,  being  merely  *indiiferent  [  *lxxiv  ] 
as  to  consequences,  he  may  be  actuated  by  some  collat- 
eral motive,  with  a  view  to  applause  or  giin,  or  may  act  carelessly 
and  negligently,  without  any  fixed  or  determinate  motive  whatsoev- 
er. As  where  one,  for  the  sake  of  shewing  his  wit  or  talent  for 
sarcasm,  indulges  it  at  the  expense  of  another's  reputation,  not  be- 
cause he  really  feels  any  inclination  to  do  that  other  an  injury,  nor 
because  he  is  actuated  by  any  personal  feeling  of  hatred  or  animosi- 
ty, but  merely  to  entertain  others  and  shew  himself  off  to  advantage. 

But  it  is  plain  that  no  one  of  these  predicaments  can,  without  ref- 

and  punishes  the  publisher  of  written  slander,  takes  no  cognizance  of  mere  oral  cal- 
umny, and  whilst  it  restrains  by  penal  means  all  deliberate  attempts  to  destroy  char- 
acter and  reputation  by  written  defamation,  leaves  mankind  at  full  liberty  lo  com- 
municate on  the  subject  of  character  and  reputation,  without  the  fear  or  apprehen- 
sion of  penal  visitation. 

(i)  Si  verba  quaedam  prolata  sint  ambigua  duplicem  admittentia  significationem,  ia 
bonam  partem  in  dubio  facienda  eorum  interpretatio,  quoties  enim  alia  potest  capi 
conjectura  pro  delicto  praBSumendum  non  est.  Sia  tales  fuerint  prolati  sermones  qui 
per  se  et  propria  significatione  contumeliam  iferunt  injuriandi  animus  adfuisse  credi- 
tur. — Voet.  Com.  tit.  de  Injur,  p.  1023. 

Vol.  I.  14 


Ixxiv  PRELIMINARY  DISCOURSE. 

erence  to  the  legal  occasion  and  circumstances  of  the  act,  aflFord  any 
certain  boundaries  of  responsibility.  Be  the  motive  ever  so  mali- 
cious, there  may  be  and  are  cases  where  it  is  essential,  on  grounds  of 
lec^al  policy,  to  exclude  responsibility.  Again,  though  the  intention 
of  the  party  be  ever  so  pure  and  unexceptionable,  and  consequently, 
though  he  be  entitled  to  the  utmost  indulgence  which  is  consistent 
with  a  due  regard  to  the  interests  and  characters  of  others,  it  may 
nevertheless  be  necessary  to  restrain  the  nature  and  mode  of  com- 
munication by  such  limits  as  may  consist  with  general  convenience  ; 
for  it  is  pretty  obvious  that  a  well  intentioned  man  may  use  very  ex- 
ceptionable and  very  injurious  means  for  carrying  his  intentions  into 
eflfect ;  and  consequently,  to  make  a  mere  abstract  intention  to  do 
good,  the  criterion  of  civil,  or  even  of  criminal  responsibility,  would 
be  a  test  far  too  uncertain  and  precarious  for  practical  purposes ;  it 
is  essential,  therefore,  that  the  law  itself  should  define,  in  reference 
to  the  occasion,  to  what  extent  the  acting  on  such  intentions  should 

be  privileged.  Where  such  boundaries  have  been  defin- 
[  *Ixxv  ]   ed  and  *appointed  by  the  law,  the  wilful  transgression  of 

them  cannot  be  justified  in  foro  conscientise,  still  less  in 
foro  humane  ;  for  no  man  has  a  right,  even  morally  speaking,  to  act 
on  his  own  opinion  in  derogation  of  the  legal  right  of  another,  and  in 
opposition  to  the  municipal  law  of  the  country.  To  allow  him  to 
do  so,  because  in  his  own  opinion,  his  act  was  meritorious  and  expe- 
dient, would,  in  effect,  be  to  permit  every  man  to  act  on  his  own 
judgment,  in  opposition  to  the  law,  and  that  not  only  in  the  particu- 
lar instance  but  in  all  cases,  which,  in  effect,  would  be  to  substitute 
every  man's  own  vague  notion  of  what  is  right  and  expedient,  for 
the  certain  rules  established  by  the  supreme  power  of  the  state. 

It  follows,  therefore,  that  in  the  case  of  intellectual  injuries  to  char- 
acter and  reputation,  as  well  as  in  those  of  forcible  ones  to  the  per- 
son, it  is  for  the  law  to  define  the  particular  occasion  and  circumstan- 
ces  which  will  operate  by  way  of  justification  and  excuse  in  cases 
where  a  wilful  communication  to  the  detriment  of  another  would 
otherwise  have  subjected  the  author  to  make  compensation  in  dam- 
ages. And  consequently  it  follows,  that  the  real  motive  and  inten- 
tion of  the  author  or  publisher  of  a  communication  which  is  illegal, 
either  intrinsically  or  in  respect  of  its  consequences,  in  the  absence 


PRELIMINARY  DISCOURSE.  Ixxv 

of  such  an  occasion  and  such  circumstances  as  amount,  in  point  of  law 
to  an  absolute,  or  at  least  a  qualified  excuse,  are  -wholly  immaterial 
as  a  test  of  civil  liability.  And,  consequently,  that  although  the 
offence  of  calumny  be  defined  in  terms  -which  include  a  corrupt  or 
malicious  intention,  the  consilium  or  animus  infamandi,  yet  that 
in  the  absence  of  such  an  excuse  for  the  publication  of 
noxious  matter,  which  the  law  recognizes,  *such  an  inten-  [  *lxxvi  ] 
tion  is  necessarily  to  be  inferred  or  presumed  from  the 
act  itself  (j/). 

0)  And,  therefore,  although  according  to  the  Roman  law,  the  mens  rea  or  animus 
infamandi  was  regarded  to  a  much  greater  extent  than  the  law  of  England  permits  ; 
yet  was  the  illegal  intent  regarded  as  a  matter  of  inference  from  the  use  of  contume- 
lious expressions,  supra,  Ixxiii.  note  (t)- 

It  is  not  improbable  that  in  the  earlier  stages  of  the  law  and  before  the  limits  of 
privileged  communication  had  been  defined  by  reference  to  the  occasion  and  circum- 
stances of  the  act,  the  mere  malicious  intention  of  the  agent  would  be  regarded  as  the 
principal  test  of  civil  responsibility.  Experience  would  show  the  insufficiency  of  such 
a  criterion,  and  limits  would  gradually  be  introduced,  defined  by  reference  to  the  oc- 
casion and  circumstances  of  the  act,  independently  of  the  actual  intention  with 
which  the  act  was  done.  It  is  probable,  however,  that  the  former  doctrine  and  lang- 
uage of  the  law,  according  to  which  malice  is  an  essential  to  responsibility,  would  still 
be  retained,  but  that  effect  would  be  given  to  the  newly  introduced  limits,  by  recog- 
nizing the  distinction  between  malice  in  law,  which  is  nothing  more  than  a  mere  legal 
inference  resulting  from  the  wilful  doing  of  an  unlawful  act  without  legal  excuse ;  and 
malice  in  fact,  which  depends  on  the  actual  intention. 

And  thus,  in  legal  and  technical  language,  malice  would  bo  regarded  as  essential  to 
the  action,  and  as  the  test  of  liability,  although  it  was  actually  so  in  one  class  of 
cases  only,  that  is,  where  the  occnsiou  supplied  a  qualified  excuse  or  justification, 
dependent  on  the  absence  of  actual  malice ;  legal  responsibility,  in  all  other  cases 
beinir  dependent  on  the  existence  or  non-existence  of  an  occasion  which  supplied  an 
absolute  bar,  and  being  wholly  independent  of  the  question  of  intention. 

There  is  a  distinction  in  the  law  of  Scotland,  as  to  intention,  between  cases  where 
the  damage  is  awarded  merely  in  solatium,  and  where  they  are  given  to  repair  a 
patrimonial  loss;  that  is,  according  to  the  law  of  England,  between  cases  where  the 
communication  is  intrinsically  actionable  and  those  where  actual  damage  must  be 
found  -,  in  the  former  case  where  the  proceeding  is  solatium,  it  must  be  founded  upon 
dolus  malus  ;  but  in  the  case  of  patrimonial  loss,  culpa  levissima  is  sufficient. — 
Craig  v.  Hunter,  June  29,  1809. 

Actual  damages  are  due,  though  occasioned  by  an  error, — per  Ld.  Gillies.  Borth. 
194. 

The  term  "  malice,"  as  used  by  the  law  of  England,  as  essential  to  liability,  in- 
clades  the  culpa  as  well  as  the  dolus  of  the  civil  law. 


Ixxvi  PRELIMINARY  DISCOURSE. 

4thly.  The  occasion  and  circumstances  of  the  communication. 

It  is  then  to  be  considered,  whether  assuming  noxious  and  injuri- 
ous matter  to  have  been  pubhshed,  the  civil  remedy  ought  to  be  re- 
strained in  respect  of  the  occasion  and  circumstances  of  the  act, 
either  -with  or  without  reference  to  the  motive  and  intention  of  the 
publisher. 

In  the  first  place,  that  it  is  on  grounds  of  expediency, 
[  *lxxvii  ]    necessary,  in  numerous  instances,  to  define  and  *restrain 
the  right  to  damages  by  limitations,  founded  on  the  oc- 
casion and  circumstances  of  the  publication,  admits  of  no  doubt. 

The  necessity  for  such  limitations  is  apparent,  when  it  is  consid- 
ered, in  the  first  place,  that  in  numerous  instances,  a  party,  in  mak- 
ing communications  most  injurious  to  character,  is  not  a  free  agent, 
but  necessarily  acts  under  legal  authority  and  compulsion.  Thus, 
in  every  civilized  state,  such  communications  are  necessary ;  with  a 
view  to  the  administration  of  justice,  and  it  requires  no  force  of  ar- 
gument to  show  how  seriously  the  course  of  justice  would  be  impe- 
ded, if  judges,  jurors,  and  witnesses,  who  acted  merely  in  obedience 
to  the  law,  were  to  be  subjected  to  the  ordinary  action  for  slander, 
in  respect  to  the  communications  which  they  were  obliged  to  make. 
It  is  a  matter  of  obvious  policy  and  convenience,  that 
[*lxxviii]  great  latitude  should  be  aiforded  *in  respect  of  such  com- 
munications as  are  necessary  for  the  ordinary  exigencies 
of  society,  and  the  mischief  and  inconvenience  would  be  great,  if 
those  were  to  be  fettered  and  restrained  by  the  perpetual  apprehen- 
sion of  litigation. 

If,  then,  the  claim  to  damages  ought,  on  grounds  of  extrinsic 
policy,  to  be  limited  by  the  occasion  and  circumstances,  are  these, 
and  in  what  instances,  to  operate  as  an  absolute  and  conclusive 
exception,  independently  of  the  question  of  intention  ;  and,  again, 
in  what  instances  are  the  occasion  and  circumstances  to  operate  as 
a  qualified  bar,  taking  into  consideration  the  real  motive  and  inten- 
tion of  the  author  or  publisher. 

So  essential,  on  grounds  of  policy  and  expediency,  is  it,  that  in 
some  instances  the  occasion  of  publishing  should  constitute  an  abso- 
lute and  peremptory  bar  to  the  total  exclusion  of  civil  liability,  in 
respect  of  the  publication  of  injurious  matter,  and  that,  in  others, 


PRELIMINARY  DISCOURSE.  Ixxviii 

the  occasion  should  constitute  not  an  absolute,  but  qualitied  bar, 
subject  to  the  consideration  of  the  actual  intention  of  the  publisher, 
that  these  general  distinctions  are  probably  common  to  every  system 
of  municipal  law,  subject,  nevertheless,  to  particular  modifications. 

First,  then,  within  what  limits  ought  the  particular  occasion  to 
operate  as  an  absolute  bar,  independently  of  the  motive  and  intention 
with  which  the  communication  was  made. 

It  is  observable,  in  the  first  place,  that'  such  an  absolute  and  per- 
.emptory  bar,  with  one  exception,  (that  is,  where  the  imputation  is 
true,)  seems  to  rest  wholly  on  principles  of  external  policy,  for  it 
is  obvious,  that  in  all  cases,  where  one  man,  with  a  mali- 
cious and  deliberate  intention,  *occasions  damage  to  an-  [*lxxix] 
other  by  false  and  calumnious  representations,  ho  is 
bound  to  make  compensation,  both  according  to  the  plain  principles 
of  natural  justice,  and  according  to  the  ordinary  maxims  of  muni- 
cipal law,  and,  therefore,  that  any  exemption  from  such  responsi- 
bility must  necessarily  depend  upon  some  external  consideration  of 
policy  and  convenience.  In  other  words,  that  for  some  reason  or 
other,  less  of  mischief  and  inconvenience  would  result  to  society 
from  denying  a  remedy  in  that  class  of  cases,  than  on  the  other  hand 
would  accrue,  if  the  ordinary  remedy  were  accorded.  This  class 
of  cases,  therefore,  does  not  admit  of  general,  and,  as  it  were,  nat- 
ural limits  and  boundaries,  without  reference  to  the  state,  condition 
and  circumstances  of  the  particular  society,  for  whose  governance 
the  law  is  intended,  and  the  general  system  and  spirit  of  its  institu- 
tions. It  is  easy,  however,  to  see  that,  as  a  matter  of  extrinsic  pol- 
icy, such  a  protection  ought  to  be  extended  principally  in  those  in- 
stances, where  the  parties  act  under  peremptory  legal  obligations, 
in  the  discharge  of  duties  of  so  important  and  essential  a  nature, 
that  it  might  be  attended  with  great  public  inconvenience,  to  allow 
their  motives  to  be  called  in  question,  and  to  subject  them  to  ordi- 
nary actions  of  defamation.  Such  principles,  applied  to  our  own 
constitution  and  circumstances,  would  obviously  include  communica- 
tions made  in  parliament,  and,  in  all  countries  to  those  made  by 
judges,  jurors,  and  witnesses,  in  the  ordinary  course  and  administra- 
tion of  justice  Qi). 

(h)  The  title  of  one  section  in  Mr,  Borthwick's  Law  of  Libel  in  Scotland  is  "  of 


Ixxx  PRELIMINARY  DISCOURSE. 

[  *Ixxx  ]  *There  is  also  one  class  of  cases,  where,  although  the 
[  *lxxxi  ]     communication  be  in  fact  false,  yet  where  it  is  *founded 

privileged  cases,  where  the  capacity  alone  in  ivhich  the  defender  has  acted,  may  amount 
to  a  complete  justification.'"  And  this  absolute  or  peremptory  privilege,  which  pro- 
tects the  party  from  an  action  for  slander,  without  any  regard  to  his  motive  or  inten- 
tion, applies  to  all  communications  by  judges,  jurors  and  witnesses,  acting  as  such. 
The  Lord  Advocate  is  not  liable  to  an  action,  in  respect  of  any  action  which  he  in- 
stitutes, however  unfounded  it  may  turn  out  to  have  been,  yet  he  is  compellable  to 
disclose  the  nameof  his  informer,  who  is  liable  to  statutable  penalties,  as  a  false  and 
calumnious  accuser.  Such  a  proceeding  is  closely  analogous  to  the  English  action 
on  the  case  for  a  malicious  prosecution. 

Mr.  Borthwick  states  his  opinion,  that  the  law  of  England  which  considers  the 
publication  of  the  proceedings  in  parliament,  or  in  the  ordinary  courts  of  justice,  as 
absolutely  privileged,  is  applicable  to  the  Scotch  practice,  but  with  considerable 
abatement.  And  it  appears  that  the  practice  which  has  prevailed  in  England,  of 
publishing  ex  par/e  proceedings,  even  in  criminal  cases,  has  been  frequently  repro- 
bated by  the  judges  in  Scotland.  In  the  case  of  of  Stewart  v.  Allan,  Dec.  31,  1818, 
Lord  President  Hope,  in  delivering  his  opinion,  observed,  "  a  newspaper,  while  it 
confines  itself  to  the  discussion  of  political  affairs  and  public  occurrences,  is  useful 
and  worthy  of  encouragement,  and  the  liberty  of  the  press  has  been  more  important 
for  the  maintenance  of  our  liberty  than  any  one  public  right  enjoyed  by  the  people 
of  this  country.  But  what  has  the  liberty  of  the  press  to  do  with  the  miserable  law- 
suits of  individuals  ?  And,  in  particular,  I  desire,  from  this  chair  to  say,  whatever 
may  be  the  practice  in  England,  what  have  newspapers  to  do  with  lawsuits  during 
their  dependence,  or  with  prosecutions  in  criminal  cases  before  they  are  concluded  ? 
It  is  the  most  mischievous  and  monstrous  abus-e  of  the  liberty  of  the  press,  that  I 
can  imagine,  to  publish  garbled  statements  of  judicial  proceedings,  wAjc^  such  ac- 
counts  will  generally  be,  and  thus  to  excite  unfavourable  impressions  against  one  of 
the  parties  ;  I  am  astonished  at  what  I  see  in  the  other  end  of  the  island— not  only 
reports  of  civil  cases  published  under  such  circumstances  as  may  tend  to  prejudice 
the  jury  and  the  judge,  but,  to  my  amazement,  you  see  precognitions  taken,  with  a 
view  to  prepare  for  the  trial  of  criminals,  and  which  must  have  the  effect  of  instilling 
prejudices  into  the  minds  of  those  who  are  afterwards  to  try  their  case.  Such  prac- 
tices are  unknown  here,  and  I  hope  they  will  always  be  so." 

It  seems,  however,  to  be  perfectly  well  settled,  that,  by  the  law  of  England,  the 
publication  of  ex  parte  criminal  proceedings  will  subject  the  publisher  to  criminal,  as 
well  as  civil  consequences,  and  the  better  opinion  seems  to  be,  that  the  same  will 
extend  also  to  the  publication  of  mere  ex  parte  civil  proceedings  of  a  defamatory 
nature.  See  the  authorities,  vol.  1,  p.  2.57,  and  also  Lord  Hale's  opinion,  St.  Tr. 
vol.  3,  p.  543. 

The  constituting  the  occasion  a  peremptory  bar  to  an  action,  without  regard  to 
malice,  though  the  law  of  Scotland  regards  malice  as  of  the  essence  of  the  offence, 
is  reconciled  by  considering  the  criminal  intention  as  rebutted  or  redargued  by  evi- 
dence of  the  occasion,  whicli  is  thus  made  to  operate  as  a  pra:sumptio  juris  Sf  dejure. 
This,  it  is  obvious,  is  but  a  circuitous  mode  of  saying,  that  in  one  class  of  cases,  the 
question  of  malice  is  immaterial,  and  intention  ceases  to  be  a  test  of  responsibility. 


PRELIMINARY  DISCOURSE.  hxxi 

on  reasonable  and  probable  cause,  the  occasion  may  exempt  from  legal 
responsibility,  notwithstanding  the  malicious  and  hostile  motive  of 
the  accuser.  The  principle  of  immunity,  in  this  case,  is  one  of  ex- 
trinsic policy,  ■which  affords  protection  to  the  party,  though  he  com- 
mits a  wrong,  morally  speaking,  out  of  regard  to  the  inconvenience 
•which  would  result  from  discouraging  men  from  making  such  com- 
munications. The  principal  instance  of  this  class  of  cases  is,  that 
of  a  false  and  mahcious  prosecution.  One  who  makes  a  criminal 
charge  for  the  mere  gratification  of  private  malice,  acts  immorally, 
though  there  be  probable  ground  for  making  it ;  and  if  no  extrinsic 
consideration  of  policy  intervened,  there  would  be  great  reason  for 
holding  that  such  a  charge  should  not  be  made  but  at  the  peril  of 
the  voluntary  accuser,  and  that  he  ought,  if  he  failed  to  substantiate 
his  accusation,  to  make  reparation  to  the  party  whom 
*he  had  accused  maliciously,  and  as  it  turned  out,  con-  [  *lxxxii  ] 
trary  to  the  truth.  But  a  consideration  of  public  policy 
intervenes  :  it  is  for  the  interest  of  society  that  investigation  should 
take  place  in  all  cases  where  there  is  reasonable  and  probable  cause 
for  inquiry,  and  therefore,  the  question  arises,  whether  it  would  be 
productive  of  greater  inconvenience  to  deny  the  individual  remedy 
in  such  cases,  that  is,  where  a  probable  cause  for  preferring  the 
charge  existed,  or  to  discourage  prosecutions  by  allowing  the  remedy. 

In  the  next  place,  still  assuming  that  the  complainant  has  sus- 
tained some  injury  from  the  publication  of  that  which  is  in  its  own 
nature  noxious  and  detrimental,  the  occasion  of  publishing  may  sup- 
ply a  qualified  bar  or  defence  to  the  action,  dependent  on  the  real 
motive  and  intention  of  the  publisher. 

This  is  a  distinction,  which,  on  considerations  of  natural  justice, 
coupled  with  those  of  external  policy,  necessarily  comprehends  a 
numerous  and  important  class  of  publications,  affecting  character 
and  reputation.  To  prohibit  communications,  however  necessary 
they  might  be  in  the  ordinary  intercourse  of  society,  and  however 
confidential  in  their  nature,  in  all  cases  where  they  might  occasion 
mischief  to  an  individual,  would  be  to  impose  restraints  and  fetters 
on  mutual  intercourse,  which  would,  at  the  least,  be  inconvenient,  if 
not  intolerable.  No  one  would  be  able  to  give  a  character  of  a 
servant,  or  even  venture  to  give  his  opinion  of  an  inn  or  tavern,  for 


Ixxxii  PRELIMINARY  DISCOURSE. 

fear  of  an  action.     And,  on  the  other  hand,  to  allow  every  indi- 
vidual mahciously  to  deal  out  malignant  calumnies,  under  the  cloak 
and  color  of  privileged  communications,  would  as  little 
[  *lxsxiii  ]     consist  with  the  convenience  and  comfort  *of  society, 
as  with  the  principles  of  morality  and  natural  justice. 

The  common  and  daily  intercourse  of  mankind  for  the  purposes  of 
business,  the  ordinary  exigencies  of  society,  require  that  communi- 
cations be  made,  though  they  may  be  prejudicial  to  particular  indi- 
viduals ;  it  would  be  vain  and  impolitic  to  endeavor  to  prohibit  them. 

But  it  is  not  for  the  convenience,  but  greatly  to  the  prejudice  of 
society,  that  false  and  injurious  communications  should  be  made,  not 
in  order  to  the  furtherance  of  any  good  or  beneficial  object,  but  for 
the  gratification  of  an  evil  and  malicious  disposition  :  here,  then,  is 
a  plain  and  obvious  limit  to  such  communications.  Where  they  are 
made  honestly,  and  honcl  fide,  with  a  view  to  the  exigencies  of  soci- 
ety, they  are  privileged  on  principles  of  policy  and  convenience, 
though  the  party  who  made  them  was  mistaken,  but  when  they  are 
falsely  and  maliciously  made,  they  are  not  protected  by  any  princi- 
ple of  convenience  or  utility,  and  therefore  cease  to  be  privileged. 

The  principle  of  qualified  exemption,  where  the  condition  of  im- 
munity is  integrity  of  intention,  or,  at  least,  the  absence  of  actual 
malice,  comprehends  all  cases  where  a  communication  is  made  lion- 
estly,  with  a  view  to  the  discharge  of  any  legal,  or  even  moral  duty 
incident  to  a  state  of  civilized  society.  Such  communications,  it  is 
obvious,  ought  to  be  protected,  whenever  they  are  made  sincerely, 
and  not  with  an  actual  and  malicious  intention  to  defame. 

This  principle,  therefore,  includes  all  cases  where  the 
[  *lxxxiv  ]  communication  is  made  in  confidence  to  another  *on  a 
subject  in  which  he  possesses  an  interest  As  where  a 
party  gives  a  character  of  a  servant,  or  makes  the  communication 
in  the  way  of  admonition  or  advice,  or  in  the  fair  and  bond  fide  fur- 
therance of  the  interests  of  others,  or  even  of  his  own.  In  respect, 
therefore,  of  this  class  of  cases,  that  is  where  an  occasion  exists, 
which,  if  fairly  acted  upon,  furnishes  a  legal ,  protection  to  the  party 
who  makes  the  communication,  the  actual  intention  of  the  party  af- 
fords a  boundary  of  legal  liability ;  if  he  had  that  legitimate  object  in 


PRELIMINARY  DISCOURSE.  Ixxiv 

view,  which  the  occasion  supplies,  he  is  neither  civilly  nor  criminal- 
ly amenable  ;  if  on  the  contrary,  he  used  the  occasion  as  a  cloak  of 
maliciousness,  it  can  afford  him  no  protection  (Z). 

*And  here  it  is  to  be  observed,  that  as  the  honesty  and  [  "Ixxxv  ] 
integrity  with  which  a  communication  of  hurtful  tenden- 
cy is  made,  cannot  exempt  from  civil  liability,  unless  it  be  coupled 
with  an  occasion  recognised  by  the  law,  so,  ou  the  other  hand,  re- 
sponsibility ought  immediately  to  attach,  where  the  mode  or  nature 
of  the  communication  in  any  respect  exceeds  that  which  the  legal 
occasion  warrants.  For  as  to  the  excess,  no  legal  justification  or 
excuse  arises  from  the  occasion,  and  the  case  stands  on  the  same 
footing,  as  far  as  regards  such  excess,  with  any  other  communication 
made  without  lawful  excuse  ;  that  is,  the  mere  absence  of  express 
malice,  cannot  justly  repel  the  action.  And,  therefore,  though  A., 
knowing  that  B.  was  about  to  employ  an  agent,  whom  he.  A.,  sus- 
'  pected  to  be  a  man  of  unprincipled  character,  would  be  justified  in 

(/)  With  respect  to  this  extensive  class  of  cases,  the  laws  of  England  and  of  Scot- 
land, proceed  on  the  general  principles  stated  in  the  text,  and  malice  in  fact,  is  the 
test  of  civil  and  criminal  liability.  According  to  the  doctrine  of  the  Scotch  courts, 
the  occasions  operates  as  a  prcesumiiaojum  or  as  primdfacie  evidence  of  the  absence 
of  a  malicious  intention  to  injure,  and  proof  of  the  contrary  is  thrown  on  the  pursu- 
er. See  Borthw.  L.  L.  213.  And  according  to  the  law  of  England,  infra,  vol.  1,  p. 
292,  there  are  numerous  cases  of  privilege,  where  proof  of  actual  malice  is  essen- 
tial to  support  the  action.  The  extent  to  which  the  privilege  is  allowed  to  operate, 
seems  to  be  the  same  in  Scotland,  and  is  illustrated  by  Mr.  Borthwick,  in  its  appli- 
cation to  cases  of  characters  given  to  servants,  of  speeches  by  advocates,  of  literary 
criticism,  and  in  general  of  any  communication  made  either  by  or  to  one  who  has  an 
interest  in  the  making  it.  The  following  instance  may  be  cited  by  way  of  illustra- 
tion :— A  person  who  was  in  the  habit  of  sending  his  grain  to  a  mill  to  be  made  into 
meal,  had  discovered  a  contrivance,  by  which  the  miller  abstracted  a  part  of  all  the 
grain  brought  to  his  mill.  He  immediately  communicated  his  discovery  to  all  those 
who  tholcd  at  the  mill,  and  also  to  all  those  who  voluntarily  employed  it.  Upon  an 
action  being  brought  by  the  miller,  before  the  shcriiH'  of  the  county,  the  judge  deemed 
the  case  to  be  a  privileged  one,  the  communication  having  been  made  by  a  person 
who  had  sustained  an  injury,  to  others  who  had  been  also  injured  by  the  pursuer's 
dishonest  conduct,  and  who  had  therefore  an  interest  to  be  made  acquainted  with  it. 
The  defender  offered  to  prove  the  truth  of  the  information,  which  the  sheriff  allowed. 
The  miller  denied  the  fact,  but  he  argued  that,  at  any  rate,  the  defender  had  no  priv- 
ilege or  title  to  take  the  method  he  had  done  to  check  the  evil,  and,  on  that  ground, 
ought  not  to  be  allowed  to  show  the  Veritas  convicii  and  to  this  effect  he  brought  the 
proof  before  the  court  of  session,  by  a  bill  of  advocation,  which  their  lordships  re- 
fused.   Borth.  L.  L.  236, 

Vol.  I.  15 


Ixxxv  PRELIMINARY  DISCOURSE. 

communicating  his  knowledge  toB.,  although  he  was  in  fact  mistaken, 
yet  he  would  not  be  justified  in  doing  so  in  the  hearing  of  other 
persons  who  were  not  interested  in  the  fact  ;  for  the  occasion  war- 
rants a  communication  to  B.  only,  and  as  to  the  rest,  it  is  mere  ex- 
cess, not  warranted  by  the  occasion  ;  and  though  A. 
[  *lxxxvi  ]  might  really  be  influenced  by  the  honest  *motive  of  warn- 
ing B.  of  the  danger  he  would  incur  in  employing  such 
an  agent,  yet  he  acted  illegally  in  depriving  the  latter  of  his  char- 
acter unnecessarily,  and  upon  suspicion  only.  If,  indeed,  he  knew, 
and  could  prove  the  truth  of  his  communication,  he  might  well  jus- 
tify a  publication  to  all  the  world  ;  but  that  is  a  defence  which  stands 
upon  an  entirely  different  foundation. 

If  A.  really  suspected  that  the  agent  was  a  dishonest  man,  the 
law,  founded  on  the  principles  just  announced,  would  protect  him  in 
making  the  communication  bona  fide  to  B. ,  though  in  truth  he  was 
mistaken  ;  the  honesty  of  his  design,  superadded  to  a  legal  occasion, 
would  constitute  a  full  defence  ;  but  when  he  makes  the  communi- 
cation to  others,  the  occasion,  as  far  as  concerns  the  communication 
to  them  fails,  and  he  ought,  on  the  plainest  principles  of  natural  jus- 
tice, to  be  responsible  for  a  wilful  and  wanton  derogation  from  the 
right  of  another,  by  unnecessarily  making  a  charge  which  turns  out 
to  \iQ  false. 

Having  thus  briefly  noticed  the  principal  circumstances  which 
seem  to  be  essential  to  the  limitation  of  freedom  of  communication, 
for  the  sake  of  security  of  character  to  individuals,  and  the  natural 
boundaries  which  appertain  to  such  limitations,  the  subject  is  now  to 
be  considered  in  reference  to  the  welfare  and  security  of  the  'public 
(m) 

(m)  It  is  remarkable  that,  by  the  law  of  Scotland,  four  different  objects  may  be 
combined  in  a  proceeding  for  libel. — 1.  For  a  reparation  for  damages  sustained  in 
property. — 2.  A  solatium  commensurate  to  the  plaintiff's  mental  and  personal  suffer- 
ings.— 3.  Tor  penal  censures,  ad  vindictam  publicam. — 4.  For  a  palinode.  See  Borth 
34.  By  the  civil  law,  though  the  ground  of  the  remedial  and  criminal  proceeding,  in 
case  of  libel,  was  identical,  yet  the  actions  were  kept  distinct. 

According  to  the  law  of  England,  an  entire  distinction  is  preserved  between  civil 
and  criminal  proceedings  in  cases  of  libel,  except,  perhaps,  in  the  single  instance  of 
an  action  of  scandalum  magnatum,  under  the  statutes,  vide  vol.  I.  p.  175 

The  law  of  England,  formerly,  combined  criminal  and  civil  proceedings  to  a  far 


PRELIMINARY  DISCOURSE.  Ixxxvu 

*Here,  pursuing  the  same  course  as  before,  the  ques-  [  *kxxvii  ] 
tions  are,  1st,  whether  restraint  be  necessary  for  the  se- 
curing the  interests  of  the  public  ?     2naiy,  What  arc  the  proper 
modes  and  limits  of  restraint  ? 

In  the  first  place,  the  necessity  for  some  degree  of  restraint  is 
of  too  obvious  a  nature  to  require  more  than  a  few  cursory  remarks. 
It  is  plainly  essential  that  the  laws  of  every  civil  society  should 
provide  not  only  against  attempts  to  produce  a  violent  and  premar 
ture  dissolution  of  its  existence,  but  also  against  indirect  as  well  as 
direct  endeavors  to  violate  its  particular  regulations,  and  ordinances, 
and  bring  them  into  contempt. 

To  a  perfect  system  of  jurisprudence,  no  laws  can  be  more  es- 
sential and  important  than  those  which  protect  the  very  existence 
and  safety  of  the  civil  constitution  itself.  It  would  be  in  vain  to  erect 
the  political  edifice,  without  at  the  same  time  securing  its  founda- 
tions. 

*Where  the  immediate  end  and  object  of  communica-   [  *lxxxviii  J 
tions  whether  oral  or  written,  is  the  total  subversion  of 
the  civil  constitution,  they  necessarily  rank,  in  degree,  with  other 
treasonable  practices  against  the  state. 

Where  they  amount  to  direct  incitements,  to  commit  some  specific 
violation  of  a  particular  law,  the  offence  must  necessarily  be  nearly 
of  kin  to  an  actual  violation  of  that  law  ;  if  an  actual  breach  of 
the  law  be  the  consequence  of  such  a  solicitation  or  incitement,  the 
act  amounts  to  an  absolute  and  complete  transgression  of  the  law, 
and  even  though  that  consequence  should  not  follow,  yet  a  deliber- 
ate attempt  to  break  the  law  must  necessarily  constitute  an  offence 
which,  in  principle  at  least,  calls  for  penal  visitation. 

And  the  necessity  for  restraint  applies  to  indirect,  as  well  as  di- 
rect sohcitations,  to  violate   the  law;    for,  as  the  latter  may  be 

greater  extent.  In  an  action  for  the  abduction  of  a  wife,  the  offender  even  now  is 
not  only  liable  to  damages  to  the  injured  husband,  but  also  under  the  same  statute, 
(1st  of  West.)  to  two  years'  imprisonment.  And  the  form  of  proceeding  in  a  civil 
action  of  trespass,  vi  et  armis,  to  this  day,  shows  that  the  guilty  defendant  was  also 
liable  to  pay  a  fine  to  the  king,  for  his  breach  of  the  public  peace.  Such  considera- 
tions are  not  merely  of  a  formal  and  technical  nature  ;  the  tendency  of  such  combi- 
nations  is  to  annex  incidents  in  common,  which  ought,  for  convenience  sake,  to  be 
annexed  separately. 


Ixxxviii  PRELIMINARY  DISCOURSE. 

equally  efficacious,  they  are  equally  dangerous  with  the    former, 
and  ought,  therefore,  to  be  equally  prohibited.     But  farther,  it  is 
obvious  that  the  security  of  a  state   may  be  endangered,  not  only 
by  direct  and  immediate  attempts  to  subvert  it,  but  even  still   more 
successfully,  by  bringing  its  estabhshments,  civil  and  religious,  or 
its  ministers    and  officers,  into  disgrace   and  contempt ;  that  the 
state   and  reputation  of  individuals  are  as  much  or  more   exposed 
than  even  their  persons  or  property  to  malicious  and  insidious  spoli- 
ation, and  that  men  may  be  excited  and  provoked  to  commit  acts 
of  violence  by  collateral  insults,  as  well  as  by  the  most  open  and  di- 
rect solicitations.     It  is,  therefore,  essential  to  the  security  of  every 
civil  government,  as  well  as  to  the   preservation   of  its 
[  *lxxxix  ]   establishments,  the  due  observance  of  its  laws  *and  or- 
dinances, and  protection  of  its  members,  that  restraint 
should  be  imposed,  as  well  upon  indirect  as  direct  attempts  of  this 

nature. 

There  are  other  evils  equally  serious,  against  which  security  is 
necessary.  Mere  positive  laws  are  of  little  avail,  without  the  power- 
ful aid  of  religion  and  morality  ;  it  is  therefore  of  great  importance,  to 
the  well-being  of  society,  that  its  interests  should  be  protected  against 
the  pernicious  influence  of  communications  tending  generally  to  ex- 
tinguish men's  rehgious  faith,  and  to  eradicate  from  their  minds  the 
principles  of  morality. 

For  though  human  laws  which  ought  to  be  definite  and  precise, 
which  must  be  of  limited  extent,  and  which  command  not  but  where 
thev  can  compel,  cannot  be  co-extensive  with  the  obhgations  of  mor- 
ality ;  and  although  by  far  the  greater  part  of  the  ordinary  duties  of 
a  member  of  society,  fall  not  within  the  scope  of  any  positive  muni 
cipal  laws,  but  must  be  left  to  every  man's  sense  of  propriety  and 
conscience,  and  to  a  salutary  dread  of  public  censure,  the  same  diffi- 
culties do  not  apply  in  restraining  generally,  by  positive  laws,  such 
communications  as  tend  to  instil  bad  principles  or  extirpate  good  ones, 
and  which,  consequently,  tend  not  only  to  the  disregard  and  neglect 
of  all  the  moral,  as  well  as  legal  duties  of  life,  but  to  the  active  prac- 
tice of  every  species  of  immorality.     To  restrain  such  attempts  is  the 
more  necessary,  when  it  is  considered,  that  for  the  performance  of 
most  of  the  common  duties  of  life,  undefined  by  positive  law,  and  for 


PRELIMINARY  DISCOURSE.  Ixxxix 

the  preservation  of  decency  and  good  order,  religious  and  moral  prin- 
ciples and  the  da-ead  of  public  censure,  are  the  only  se- 
curities. 

*Such  considerations  become  infinitely  more  strong  and  [  *xg  ] 
important,  when  they  are  considered  in  reference  to  the 
facility  of  communication,  supplied  by  the  art  of  printing,  especially 
■where  its  operation  is  still  further  extended  by  a  general  system  of 
national  education,  ^Yhich,  in  effect,  subjects  to  its  power  the  great 
mass  of  the  public. 

The  press  is,  indeed,  a  mighty  instrument  for  the  diffusion  of  know- 
ledge, capable  of  being  applied  to  the  best,  or  perverted  to  the  worst 
of  purposes  ;  eminently  useful  in  promoting  the  interests  of  religion, 
morality,  science,  and  social  happiness,  it  may  bei abused  as  the  in- 
strument of  impiety,  vice,  error,  and  malice.  When,  therefore,  it  is 
considered  how  much,  not  merely  the  opinions,  but  the  feelings  and 
passions  of  the  public,  are  capable  of  being  influenced  and  excited 
by  means  of  this  powerful  agent,  how  few  there  are  who  think  for 
themselves,  and  who  are  not,  it  may  be  insensibly,  guided  and  moved 
by  the  opinions  of  others,  how  great  a  dominion  may  be  exercised  by 
one  strong  mind  over  those  of  millions,  how  favourable  the  generality 
of  mankind  are  lo  the  reception  of  the  most  calumnious  charges  ;  bow 
credulous  in  listening  to  the  most  improbable  misrepresentations  ;  and 
how  greatly  every  calumny,  difected  against  an  individual,  is  aggra- 
vated by  increased  publicity  ;  when  these  things  are  considered,  it 
will  readily  appear,  of  what  supreme  importance  it  must  be  in  every 
system  of  municipal  law,  on  the  one  hand  to  protect  the  liberty  of 
communication,  and  on  the  other  to  exclude  the  complicated  and 
frightful  mischiefs  which  must  necessarily  emanate  from  a  corrupted, 
venal,  and  licentious  press. 

*What,  then,  are  the  proper  mode  and  measure  of  re-     [  *xci  ] 
straint  ?     Public  security  must  be  provided  for,  either  by 
imposing  previous  restraints,  or  admitting  the  general  right  to  pub- 
lish, by  subjecting  those  who  abuse  the  privilege  to  subsequent  pun- 
ishment. 

And  SMch  previous  restraints  are  either  absolute  or  qualified. 
The  notion  of  absolute  exclusion  is  too  extravagant  to  require  at- 
tention ;  it  is  a  scheme  calculated  only  for  extreme  cases ;  that  is, 


XCl 


PRELIMINARY  DISCOURSE. 


either  for  a  state  of  complete  despotism,  where  the  condition  of  the 
people  cannot  be  worse,  and  where  it  is  the  policy  of  the  oppressors 
to  prevent  its  becoming  better,  or  for  a  state  of  absolute,  but  alas, 
ideal  perfection,  where,  ex  hypothesis,  every  alteration  must  be  for 
the  worse,  and  where  to  change  and  to  repent  are  convertible  ex- 
pressions (w). 

What  shall  we  say,  then,  of  that  kind  of  modified  intellectual 
dominion,  which  not  only  may  be,  but  has  been  exercised,  even 
under  a  constitution  in  other  respects  free  (o),  that  is  by  subjecting 

the  press  to  the  control  of  a  ])ublie  licenser. 
[  *xcii  ]         *At  this  day,  and  in  this  country,  where  the  liberty 

of  the  press  has  so  long  been  beneficially  enjoyed,  though 

(n)  It  is  scarcely  necessary  to  remind  the  reader,  that  Sir  Thomas  More,  in  his 
Eutopia,  makes  the  discussion  of  political  affairs  punishable  with  death. 

(o)  M.  Delolme,  in  his  Essay  on  the  Constitution  of  England,  observes,  "  This 
privilege  (of  our  press)  is  that  which  has  been  obtained  by  the  English  nation  with 
the  greatest  difficulty,  and  latest  in  point  of  time,  at  the  expense  of  the  executive 
power.  Freedom  was,  in  every  other  respect,  already  established,  when  the  English 
were  still,  with  regard  to  the  public  expression  of  their  sentiments,  under  restraints 
that  may  be  called  despotic.  History  abounds  with  instances  of  the  severity  of  the 
court  of  Star-Charaber,  against  those  who  presumed  to  write  on  political  subjects. 
It  had  fixed  the  number  of  printers  and  printing  presses,  and  appointed  a  licenser, 
without  whose  approbation  no  book  could  be  published.  Besides,  as  this  tribunal 
decided  matters  by  its  own  single  authority,  without  the  intervention  of  a  jury,  it  was 
always  ready  to  find  those  persons  guilty  whom  the  court  was  pleased  to  look  upon 
as  such  ;  nor  was  it,  indeed,  without  ground,  that  the  Chief  Justice  Coke,  whose  no- 
tions of  liberty  were  somewhat  tainted  with  the  prejudices  of  the  times  in  which  he 
lived,  concluded  his  eulogiums  on  this  court,  with  saying,  '  The  right  institution  and 
orders  thereof  being  observed,  it  doth  keep  all  England  in  quiet.'  " 

After  the  Court  of  Star-Chamber  had  been  abolished,  the  Long  Parliament, 
whose  conduct  and  assumed  power  were  little  belter  qualified  to  bear  a  scrutiny,  re- 
vived the  regulations  against  the  freedom  of  the  press.  Charles  the  Second,  and 
after  him,  James  the  Second,  procured  further  renewals  of  them.  These  latter  acts 
havin"  expired  in  the  year  1692,  were  at  this  era,  although  posterior  to  the  revolu- 
tion, continued  for  two  years  longer,  so  that  it  was  not  till  the  year  1694,  that  in 
consequence  of  the  parliament  refusing  to  prolong  the  prohibitions,  the  freedom  of 
the  press  was  finally  established. 

The  principle  of  restriction,  by  the  discretion  of  a  public  licenser,  still  exists,  in  a 
very  limited  degree,  in  the  instance  of  dramatic  representations.  By  the  st.  10  G. 
2.  c.  28,  no  dramatic  composition  can  be  represented  on  any  public  stage,  without 
the  previous  license  of  the  Lord  Chamberlain.  And  by  some  particular  statutes, 
regulations  are  made  to  facilitate  proceedings,  civil  as  well  as  criminal,  against  the 
publishers  of  newspapers  and  certain  pamphlets.     See  Treatise,  vol.  ii.  p.  43 — .313. 


PRELIMINARY  DISCOURSE.  xcii 

not  without  both  great  and  frequent  abuse,  little  need  be  observed 
on  the  subject  of  censorial  restraint. 

Upon  the  question,  whether  such  a  mode  of  restraint  would  be 
expedient,  that  is,  whether  it  would  exclude  more  of  evil  than  it  in- 
troduced, it  is  very  material  to  recollect,  in  the  first  place, 
that  the  comparison  *is  not  between  the   evils  occasioned     [  *xciii  ] 
by  such  restraint  on  the  one  side,  with  those  which  would 
result  from  a  total  absence  of  restraint  on  the  other,  but  merely  with 
the  excess  of  such  evils,  beyond  the  amount  to   which  they  may  be 
corrected  in  the  ordinary  course  of  justice ;  that  is,  by  inflicting 
penal  visitation  on  those  who,  being  allowed  to  publish  without  pre- 
vious impediment,  abuse  that  license,  by  publishing  what  is  noxious 
and  illegal.     For  it  cannot  be  doubted,  that  it  would  be  attended 
with  a  less  degree  of  inconvenience,  and  would  interfere  far  less 
with  the  natural  liberty  of  the   subject,  to  inflict  penal  censures  on 
those  who  abused  the  right  of  free  communication,  tban  to  extinguish 
the  right,  by  subjecting  every  publication  to  the  summary  control  of 

a  Ucenser. 

To  impose  a  general  interdict  on  society,  rather  than  restrain  an 
evil  by  the  punishment  of  a  few,  and  those,  such  as  had  actually 
ofi"ended  ;  to  deprive  all  of  the  exercise  of  a  valuable  privilege,  be- 
cause  some  would  abuse  it,  would  truly  be  to  sacrifice  the  wheat  for 
the  sake  of  rooting  up  the  tares  ;  it  would  be  to  exclude  all  that  was 
good,  because  it  was  mixed  with  partial  evil,  a  principle  which,  were 
it  applied  on  all  occasions  where  mischief  were  to  be  prevented, 
would  speedily  exclude  every  thing  that  was  good  and  valuable. 
What  privilege  do  we  boast,  what  blessing  do  we  enjoy,  which  is  not 
greatly,  and  even  frequently  abused  ? 

If  then  the  evil  to  society  from  an  abuse  of  the  liberty  of  free 
communication,  or  as  it  is  usually  termed,  the  liberty  of  the  press, 
could  be  sufiiciently  corrected  and  restrained,  by  punishing  such  as 
really  offended  without  any  surrender  or  sacrifice  of  the 
general  right  *to  publish,  there  would  be  an  end  of  the  [  *xciv  ] 
question,  and  the  subjecting  the  press  to  the  control  and 
dominion  of  a  licenser,  would  be  an  unnecessary  sacrifice  of  a  most 
valuable  portion  of  the  liberty  of  the  subject.  But,  again,  were  it 
even  to  be  admitted,  that  penal  inflictions  constituted  a  restraint  in- 


xciv  PRELIMINARY  DISCOURSE. 

adequate  to  the  correction  of  the  press — which,  so  long  as  those  in- 
flictions may  be  indefinitely  extended,  according  to  the  magnitude 
and  frequency  of  offences  and  the  exigencies  of  the  times,  it  is  dif- 
ficult to  suppose — yet  still  as  it  must,  on  the  other  hand,  be  allowed, 
that  such  penal  restraints  must  check  and  correct  the  mischief  which 
would  otherwise  result  to  society,  to  a  very  great  extent,  it  is  obvi- 
ous, that  it  is  only  the  excess  of  mischief,  which  cannot  be  so  cor- 
rected, that  ought  fairly  to  be  weighed  against  the  evils  which 
would  arise  from  the  establishment  of  a  public  licenser. 

In  general,  civil  liberty  has  been  well  defined  to  consist  in  the 
not  being  restrained  by  any  law  which  does  not  conduce,  in  a  greater 

degree,  to  the  public  good  (p). 
[  *xcv  ]  *Until,  therefore,  it  were  shown  that  the  liberty  of 
free  and  unreserved  intellectual  communication,  on  all 
subjects  of  common  interest,  ought,  for  the  pubUc  good,  to  be  sur- 
rendered to  the  exercise  of  an  authority  and  dominion  arbitrary  and 
irresponsible,  the  contrary  ought  to  be  inferred,  it  would  argue  a 
strange  degree  of  apathy,  even  folly,  to  sacrifice  so  valuable  a  por- 
tion of  natural  liberty,  without  the  fullest  conviction  that  at  the 
least  an  equivalent  was  received  in  return,  and  the  burthen  of 
proof  would  clearly  be  incumbent  on  those  who  advocated  such  a 
surrender.  How  diflScult  must  such  proof  be,  when  experience, 
the  best  and  safest  guide,  bears  testimony  to  the  inexpediency  of 
such  a  sacrifice  (^). 

{p)  la  what,  then,  does  the  liberty  of  the  press  preciselj  consist  1  Is  it  liberty  left 
to  every  one  to  publish  any  thing  that  comes  into  bis  head;  to  calumniate,  to 
blacken  whomsoever  he  pleases  ?  No  ;  the  same  laws  that  protect  the  person  and 
property  of  individuals,  do  also  protect  his  reputation  :  and  they  decree  against 
libels,  when  really  so,  punishments  of  much  the  same  kind  as  are  established  in 
other  countries.  But,  on  the  other  hand,  they  do  not  allow,  as  in  other  states,  that 
a  man  shall  be  deemed  guilty  of  a  crime  for  merely  publishing  something  in  print, 
and  they  appoint  a  punishment  only  against  him  who  has  printed  things  that  are  in 
their  nature  criminal,  and  who  is  declared  to  be  guilty  of  being  so  by  twelve  of  his 
equals  appointed  to  determine  on  his  case. — Delolme. 

Those  laws  are  the  most  favourable  to  liberty  which  define  that  which  is  criminal, 
and,  consequently,  make  liberty  the  general  rule,  and  a  penal  restraint  the  exception 
M.  Delolme  who  had  conceived  high  noitons  concerning  the  liberties  of  Englishmen, 
had  supposed  that  every  action  was  secured  by  positive  laws  carefully  worded,  and 
was  at  last  surprised  to  find  that  the  liberty  of  the  press  was  founded  simply  upon 
the  absence  of  prohibition. 

(q)  A   very  popular  ethical   writer  has  thus  expressed  himself  upon  this  subject- 


PRELIMINARY  DISCOURSE.  Xdvi 

*One  of  the  most  obvious  evils  which  would  result  [  *xcvi  ] 
from  previous  restraint  on  the  liberty  of  the  press,  *un-  [  *xcvii  J 
der  a  constitution  where  the  people  were  possessed  of 

"  If  nothing  may  be  published  but  what  civil  authority  shall  have  previously  approv- 
ed, power  must  always  be  the  standard  of  truth  :  if  every  dreamer  of  innovation 
may  propagate  his  projects,  there  can  be  no  settlement :  if  every  murmurer  at  gov- 
ernment may  diffuse  discontent,  there  can  be  no  peace  :  and  if  every  sceptic  in  the- 
ology may  teach  his  follies,  there  can  be  no  religion.  The  remedy  against  these 
evils  is  to  punish  the  authors,  for  it  is  yet  allowed,  that  every  society  may  punish, 
though  not  prevent,  the  publication  of  opinions  which  that  society  shall  think  per- 
nicious :  but  this  punishment,  though  it  may  crush  the  author,  promotes  the  book  ; 
and  it  seems  not  more  reasonable  to  leave  the  right  of  printing  unrestrained,  because 
writers  may  be  afterwards  censured,  than  it  would  be  to  sleep  with  doors  unbolted, 
because  by  our  laws  we  can  hang  a  thief" 

The  most  satisfactory  refutation  which  can  possibly  be  given  to  a  theoretical 
suggestion  of  danger,  is  that  which  experience  supplies  :  the  press  in  this  country 
has,  for  considerably  more  than  a  century,  been  rescued  from  the  control  of  a  licens- 
er ;  yet  peace,  tranquillity,  and  religion  still  survive  amongst  us. 

But,  surely,  with  all  respect  to  the  memory  of  one  who  was  justly  accounted  a 
giant  in  his  day,  it  is  but  weak  and  timid  policy  to  surrender  a  privilege  estimable 
and  valuable  in  its  own  nature,  because  it  may  be  perverted  and  abused.  If  men 
are  to  be  prohibited  from  public  communication  by  writing  or  printing,  if  the  pen 
and  press  are  for  this  reason  to  be  placed  under  arbitrary  restraints,  why  should 
even  the  tongue  be  privileged  ?  Why  should  any  man  be  allowed  to  speak  in  pub- 
lic, when  it  is  possible  that  he  may  utter  sedition  or  blasphemy  '!  Why  allow  books 
to  be  printed  at  all ;  for  the  very  arbiters  of  religion,  politics,  morals  and  taste  may 
as  well  as  others,  be  subject  to  error  or  even  corruption ;  and  what  would  the  state 
of  society  be,  when  not  only  were  vicious  and  corrupt  pubhcations  sent  forth  under 
the  sanction  and  impress  of  public  authority,  but  all  that  was  really  edifying  and 
instructive  was  wickedly  suppressed.  The  liberty  of  the  press  and  rational  free- 
dom of  public  discussion  are  the  real  bolts  and  bars  by  which  alone  depredators 
on  the  religious  and  political  rights  of  society  are  to  be  shut  out,  and  the  interest 
of  the  community  preserved.  To  destroy  these  would,  in  a  political  sense,  most 
surely  be  to  sleep  with  doors  unbolted,  without  even  the  poor  consolation  of  being 
able  to  hang  the  thief. 

When  the  art  of  printing  was  discovered,  it  was  justly  apprehended  that  it  would 
prove  an  instrument  of  mighty  force  in  its  operation  on  public  opinion  in  all  matters 
of  great  and  common  interest.  But  though  many  generations  have  now  elapsed 
since  the  date  of  this  noble  invention,  its  operation  was  necessarily  restrained  and 
limited,  whilst  the  great  mass  of  the  people,  consisting  of  those  who  were  most 
likely  to  be  influenced  by  its  means,  were  unabled  to  read  ;  it  was  reserved  for  later 
times  to  give  an  impetus  to  its  powers,  by  extending  the  means  of  knowledge  to  the 
lowest  classes,  and  opening  to  a  portion  of  socieiy,  far  exceeding  the  rest  in  num- 
bers and  physical  strength,  the  sources  of  knowledge,  and  thus  affording  them  the 
means  of  judging,  and,  what  is  of  greater  importance  in  a  political  point  of  view,  of 

Vol.  I.  16 


xcxii  PRELIMINARY  DISCOURSE. 

influence,  would  be  the  destroying,  or  at  least  weakening,  the  mu- 
tual confidence  which  ought  to  subsist  between  the  people  and  the 
government,  and  which  is  essential  to  a  vigorous  administration  of 
public  affairs. 

Under  such  a  constitution,  public  confidence  must  rest  on  public 
opinion,  and  public  opinion  cannot  be  manifested,  or  even  exist,  un- 
less the  measures  of  government  be  known,  and  be  subject  to  free 

discussion  and  comment  (r). 
[  •xcviii  ]       *Such  a  government,  from  which  public  confidence  and 

public  support  are  withdrawn,  must  necessarily  be  timid 
and  indecisive  in  all  measures  of  importance  ;  the  responsibility  of 
those  who  conduct  public  affairs,  is  greatly  increased  in  pursuing  a 
course  of  which  the  body  of  the  people  disapproves,  whilst  their 
means  of  accomplishing  objects  of  magnitude  and  difficulty  are  nec- 

acting  for  themselves.  It  is  to  this  important  change  in  circumstances  and  educa- 
tion, as  well  as  to  the  great  increase  of  wealth  and  population  in  this  country,  that 
the  multiplication  of  newspapers,  the  principal  vehicles  for  the  communication  of 
public  measures  and  events,  and  of  the  various  opinions  and  comments  to  which  they 
give  rise  is  to  be  attributed. 

Whether  it  were  wise  or  politic  to  encourage  so  great  a  change,  belongs  not  to  the 
present  occasion  to  consider.  That  no  evil  consequences  have  as  yet  resulted,  which 
can  be  at  all  placed  in  competition  with  the  splended  advantages  of  an  open  and  free 
press,  or  to  induce  the  most  timid  to  regret  its  emancipation,  seems  to  be  roost  cer- 
tain. It  is  only  from  the  licentious  abuse  of  our  liberty  that  danger  is  to  be  appre- 
hended ;  and  those  are  justly  to  be  regarded  as  the  greatest  enemies  to  freedom,  who 
by  iheir  perversion  of  the  blessing,  endeavour  to  render  it  a  curse,  and  who  endanger 
the  liberties  of  all  by  abusing  the  most  valuable  of  their  own,  for  unworthy,  base, 
and  venal  purposes. 

The  transition  is  by  no  means  difficult  or  improbable  from  a  licentious  abuse  of  lib- 
ertv  to  severe  and  excessive  restraint ;  in  such  respects,  the  danger  always  is  of  run- 
ning into  extremes  ;  to  escape  one  pressing  evil,  mankind  are  too  apt  too  seek  an  in- 
secure refuge  in  its  opposite. 

(r)  M.  Delolme,  in  his  Treatise  on  the  Constitution  of  England,  (p,  292.  ed.  1S16) 
observes,  on  this  subject, "  we  may  therefore  look  upon  it  as  a  further  proof  of  the 
soundness  of  the  principles  on  which  the  English  constitution  is  founded,  that  it  has 
allotted  to  the  people  themselves  the  province  of  openly  canvassing  and  arraigning 
the  conduct  of  those  who  are  invested  with  any  branch  of  public  authority,  and  that 
it  has  thus  delivered  into  the  hands  of  the  people  at  large,  the  exercise  of  the  censo- 
rial power.  Every  subject  in  England  has  not  only  a  right  to  present  petitions  to  the 
king  or  the  houses  of  parliament,  but  he  has  a  right  to  lay  bis  complaints  and  ob- 
Bervations  before  the  public  by  means  of  an  open  press. 


PRELIMINARY  DISCOURSE.  xcviii 

essarily  diminished,  and  that  energy  and  spirit  to  which  public  ap- 
probation and  applause  are  essential,  are  .veakened  and  impaired. 
Nor  is  public  confidence  in  the  administration  of  affairs,  more  es- 
sential to  internal  safety,  than  it  is  to  security  from  abroad.  It 
.vere  absurd  to  suppose  that  a  government  could  command  respect 
abroad,  which  was  hated  or  despised  at  home.  Such  a  condition  ot 
thincTs  must  necessarily  engender  among  foreigners  an  opinion  of  in- 
ternal weakness,  and  for  a  nation  to  be  weak,  or  even  to  be  account- 
ed so,  is  to  be  contemptible  and  insecure. 

The  advantage  of  free  and  unrestricted  communication,  on  all  po- 
litical  subjects,  is  great  and  reciprocal ;  if  the  people  have  thus  an 
opportunity  of  forming  and  expressing  their  opinion  on  PuW^c  meas- 
ures, those  who  administer  affairs  have  also  the  means  afiorded  them 
of  becoming  acquainted  with  the  disposition,  sentiments,  and  wishes 
ofthe  people,  ofavailing  themselves  ofbeneficial  and  use. 
ful  suggestions,  of  affording  explanation  *and  redress  [  xcix  J 
where  complaints  are  well  founded  ;  in  short,  of  securmg 
that  esteem,  respect,  and  confidence  on  the  part  ofthe  people  which 
are  essential  to  an  useful  and  vigorous  admmistration  (s). 

The  liberty  of  political  discussion  is  valuable,  inasmuch  as    it 
tends  to  preserve  stability  in  the  political  constitution,  enables  the 
people  to  exert  a  salutary  influence,  and  prevents  violent 
and  sudden  changes  (0-     *These,  however,  are  positions         [   cj 
which  must  be  carefully  limited  to  those  cases  where  the 

is)  Nee  veronegligenda  est  fatna  nee  mediocre  telum  ad  res  gerendas  existimare 
oportetbenevolentiamcivium.  Cic.  de  Amic.  502.  Though  some  make  sligh  of  li- 
bels, yet  you  may  see  by  them  (observes  Selden,)  how  the  wind  s.ts  As.  take  a 
straw;  and  throw  it  up  into  the  air,  you  shall  see  by  that  which  way  the  wmd  sets, 
.hich  you  shall  not  do  by  easting  up  a  stone  ;  more  solid  things  do  not  show  the 
complexion  of  the  times  so  well  as  ballads  and  libels.-Selden^s  Table  Talk. 

(i)  The  liberty  of  the  press,  which  consists  in  the  liberty  which  every  subject  pos- 
sesses  of  publishing  what  he  will,  without  previous  restraint,  subject,  however,  to 
penal  censures  if  he  publish  what  is  malicious  and  illegal,  constitutes  the  great  ex- 
cellence of  the  British  constitution.  On  this  subject  we  may  trust  to  the  evidence  of 
learned  foreigners,  without  fear  least  the  judgment  should  be  warped  and  biassed  by 
native  prejudices.  M.  Cottu,  a  learned  advocate  of  Paris,  after  having  devoted  much 
personal  attention  to  the  laws  and  constitution  of  this  country  thus  expresses  him- 
self- »  The  liberty  possessed  by  all  classes  of  the  nation,  of  acquainting  govern- 
ment legally,  and  without  recurring  to  mobs  and  insurrections,  with  their  private  opin- 


c  PRELIMINARY  DISCOURSE. 

constitution  is  constructed  on  a  fair  and  equitable  basis,  that  is, 
•where  no  larger  a  portion  of  natural  liberty  has  been  surrendered 
for  the  common  good  than  is  necessary  for  tliat  end,  or  at  all  events, 
■where  there  is  no  great  and  striking  disproportion  between  the  ben- 
efit received  and  the  price  paid  for  it ;  in  all  other  cases  this  species 
of  liberty  would  tend  to  produce  political  changes  and  alterations 
rather  than  stability.  Under  a  rigid  democracy,  or  any  other  kind 
of  government  where  tiio  people,  highly  tenacious  of  nat- 
[  *ci  ]  ural  liberty,  contributed  too  small  a  portion  of  it  *to  ren- 
der sufficiently  strong  and  effective,  it  is  natural  that  dema- 
gogues, ambitious  of  popular  influence,  should  abuse  their  unsurren- 
dered excess  of  power  to  exalt  each  his  own  individual  authority  ; 
in  such  a  case,  it  is  obvious,  that  unrestrained  freedom  of  political 
disscussion  would  be  very  ineffectual  towards  securing  peace  or  per- 

ion  on  all  the  measures  of  administration,  forms  the  main  perfection  of  the  English 
constitution." — Cottu,  194,  (.English  Translation.) 

And  again, 

"  Whenever  any  important  subject  is  submitted  to  the  discussion  of  parliament, 
the  king  and  the  two  houses  have  the  advantage  of  seeing  clearly  the  nation's  opin- 
ion on  the  proposed  measure,  and  ascertaining  how  far  it  should  be  pressed  or  aban- 
doned ;  and  it  is  thus  that  the  strength  of  the  people,  which,  united  in  one  single 
mass,  would  form  a  torrent,  whose  accumulated  waves  might,  at  the  tirst  obstacle, 
overwhelm  the  government,  is  divided,  on  the  contrary,  into  an  infinite  number  of 
individual  bodies,  resembling  a  number  of  peaceful  brooks,  which  adorn  and  fer- 
tilize the  plains  they  water,  without  the  power  of  ever  doing  mischief" — lb.  196. 

On  such  subjects,  the  treasures  of  history  contribute  less  of  information  than  on 
any  other  subject  of  public  interest  and  policy.  Were  the  laws  of  ancient  nations 
more  comprehensive  and  complete  than  we  find  them  to  be,  a  total  change  in  those 
essential  circumstances  to  which  the  restrictive  laws  are  adapted,  would  require  a 
corresponding  alteration  in  the  laws  themselves.  The  ordinances  by  which  a  great 
nation  composed  of  subjects  jealous  of  their  freedom,  amongst  whom  political  know- 
ledge is  daily  diffused  by  means  of  the  press,  who  take  a  lively  interest  in  all  public 
measures,  and  who  possess  the  means  of  expressing  their  opinion  on  such  subjects, 
can  afford  but  few  points  of  comparison  with  any  former  age  or  country.  When  the 
art  of  printing  was  yet  unknown,  the  great  mass  of  the  people,  destitute  of  informa- 
tion, could  seldom  be  moved,  but  on  great  and  sudden  occasions,  to  make  any  im- 
portant political  exertion,  and  then  only  by  fits  and  starts,  according  to  the  operation 
of  violent  and  transitory  causes.  How  much  happier  are  the  times  when  force  and 
Tiolence  give  way  to  reason,  when  the  strong  and  speedy  expression  of  public  opinion 
often  produces  greater  results  than  could  formerly  have  been  obtained  by  a  sanguin- 
ary appeal  to  arms. 


PRELIMINARY  DISCOURSE.  ci 

uianecy  in  public  affairs.  In  such  instances,  even  fair  comment 
would  but  betray  to  the  thinking  and  rational,  the  weakness,  ineffi- 
cacy,  and  instability  of  their  political  system,  and  induce  them  to 
wish  for  change,  whilst  party  zeal,  instead  of  attributing  the  mischief 
to  its  true  cause,  the  want  of  a  supreme  power,  possessing  reputation, 
confidence,  and  strength,  sufficient  to  secure  the  public  peace  from 
repeated  aggressions  by  turbulent  factions,  would  but  foment  suces- 
sive  struggles  for  popular  ascendency  by  mutual  and  intemperate 
recriminations,  at  the  expense  of  a  constant  diminution  of  public 
strength  and  security. 

On  the  other  hand,  under  an  arbitrary  and  despotic  form  of  gov- 
ernment, where  the  people  had  surrendered  too  large  a  portion  of 
their  liberties,  discussions  tending  to  show  the  inexpediency  of  their 
political  condition,  would  necessarily  tend  also  to  render  the  people 
discontented,  dissatisfied,  and  anxious  for  change,  whilst  it  would  be 
the  interest  of  those  who  thus  possessed  an  excess  of  power  beyond 
what  was  just,  to  prevent  and  hinder  such  communications,  in  order 
to  oppose  that  tendency.     And  it  is  obvious,  that  in  proportion  to 
the  degree  of  oppression  under  which  the  people  laboured,  the  strong. 
er  would  be  the  motive  with  those  in  power  to  suppress  the  discus- 
sion of  public  measures  and  silence  remonstrances,  for 
the  greater  would  be  the  *probability  of  change,  either        [  *cii  ] 
reluctantly  yielded  to  the  influence  of  public  opinion,  or 
compelled  by  an  appeal  to  force.     And  thus  it  is  that,  under  a  state 
of  absolute  despotism,  where  a  successful  tyranny  has  reduced  the 
people  the  to  ultimum  in  servitute,  it  becomes  a  necessary  incident  to 
the  same  wicked  policy  to  compel  men,  not  to  forget  their  wrongs, 
for  memory  must  remain  to  the  most  abject,   but  to  suffer  them  in 
silence  (m). 

(u)  Dedimus  profecto  grande  patientise  documentum  et  sicut  vetus  setas  vidit  quid 
ultimum  in  libertate  esset,  ita  no3  quid  in  servitute.  adempto  per  inquisitiones  et 
loquendi  audicndique  commeroio.  Memoriam  quoque  ipsam  cum  voce  perdidissemus 
si  lam  in  nostra  potestate  csset  oblivisci  quam  tacere.  Nunc  demum  rcdit  animus, 
&c.  Such  were  the  aflecting  observations  of  Tacitus,  in  describing  the  happy  tran- 
sition to  the  government  of  Trajan  from  a  state  of  abject  suffering  under  the  rod  of 
Domitian. 

The  Emperors  Julius  and  Augustus  had  the  magnanimity  to  despise,  or  at  least 
the  prudence  to  overlook,  many  instances  of  personal  calumny  against  themselves. 


<jUi  PRELIMINARY  DISCOURSE. 

[  *ciii  ]  *It  is  only  under  a  just  and  equitable  constitution  that 
freedom  of  discussion  tends  to  the  desirable  ends  of 
peace,  permanency,  and  security.  Where  a  reasonable  and  fair 
proportion  exists  between  the  quantum  of  liberty  Tvhich  is  surren- 
dered, and  the  advantages  derived  from  a  free  constitution  and 
equal  laws,  the  people  are  little,  at  all  events  they  are  much  less 
likely,  to  be  influenced  by  the  desire  of  change ;  and  the  more 
they  know  and  discuss  the  nature  of  their  political  system,  the 
greater  must  be  their  attachment  to  the  existing  state  of  things, 
whilst  the  notoriety  of  all  public  measures,  the  privilege  of 
free  discussion,  of  openly  expressing  public  opinion,  and  the  de- 

Antonii  epistolse,  Bruti  condones,  falsa  quidcm  in  Augustum  probra  sed  niulta  cum 
acerbitate  liabent.  Carmina  Bibaculi  et  CatuUi  referta  conlumcliis  CBesarum  legun- 
tur.  Sed  ipse  Divas  Julius  ipse  Divus  Augustus  et  tulere  ista  et  relinquere;  baud 
facile  dixerim  moderatione  magis  an  sapientia;  namque  sprela  exolescunt,  si  ira- 
scare  adgnita  videntur  ;  non  attingo  Grsecos  quorum  non  modo  libertas  etiam  libido 
impuniia,  aut  si  quis  advertit  dicta  dictis  ultus  est. 

These  were  the  observations  attributed  to  Cremulius  Cordus,  who  was  accused  under 
the  gloomy  reign  of  Tiberius,  with  having  extolled  Brutus  and  Cassius,  and  asserted 
that  Cassius  was  the  last  of  the  Romans.  Postulatur,  says  the  historian,  novo  ac 
tunc  primum  audito  crimine  quod  editis  annalibus  laudaloque,  M.  Bruto  C.  Cassium 
Romanorum  uhimum  dixisset.  Accusabant  Satrius  Secundus  et  Pinarius  Natta, 
Sejani  Clientes  ;  id  perniciabile  reo  et  Ceesar  truci  vultu  defensionem  accipiens. 
So  little  hope  had  the  unfortunate  orator  of  experiencing  clemency  or  even  justice, 
that,  after  making  his  defence  before  the  senate,  he  sought  death  in  abstinence.  One 
of  the  most  bitter  reflections  on  the  memory  of  Tiberius,  as  a  ruler,  is  the  record  of 
the  historian,  that  a  solitary  act  of  clemency  to  a  libeller  diffused  a  transitory  feeling 
of  satisfaction  (modica  Iselitia)  over  a  desponding  people. 

His  tanien  adsiduis  tamque  moestis  modica  Isetitia  interjocitur  quod  C.  Cominium 
Equitem  Romanum  probrosi  in  se  carminis  convictum  Cassar  precibus  fratris  que 
senator  eral  concussit.     Tac.  Annal.  1.  4. 

According  to  M.  Montesquieu,  "  no  government  is  so  averse  to  satirical  writings 
as  the  aristocratical.  There  the  magistrates  are  petty  sovereigns,  but  not  great 
enough  to  despise  affronts.  If  in  a  monarchy  a  satirical  stroke  is  designed  against 
the  prince,  he  is  placed  on  such  an  eminence,  that  it  does  not  reach  him,  but  an  aris- 
tocratical lord  is  pierced  to  the  very  heart.  Hence  the  decemvirs,  who  formed  an 
aristocracy,  punished  satirical  writings  with  death."    B.  12,  c.  13. 

It  may,  for  reasons  hereafter  given,  be  doubted,  whether  the  decemviral  law  was 
80  severe  as  M.  Montesquieu  supposes  ;  there  is  at  least  no  proof  that  so  cruel  a 
law  was  ever  enforced  to  its  extent.  On  the  other  hand,  Augustus  and  Tiberius 
first  violated  the  law  by  a  tyranical  construction,  wliich  brought  satirists  within  the 
penalties  of  treason,  and  subjected  them  to  capital  punishment. 


PRELIiMINARY  DISCOURSE,  m 

gree  of   influence  which  that  opinion    *must    necessa-     [  *civ  ] 
rily  possess  (v),  tend   to  inspire  the  people  with  confi- 
dence in  their  rulers,  and  diminish  the  probabiUty  of  popular  dis- 
ajQfection  and  civil  commotion. 

On  the  other  hand,  the  same  considerations  render  any  encroach- 
ment upon  the  liberties  of  the  people,  if  not  impracticable  at  least 
difficult.  It  would  be  impossible  that  any  formidable  practices 
against  their  interests  could  long  be  carried  on  in  secret 
(jv'),  and  to  *make  them  known,  to  expose  their  authors,  [  *cv  ] 
and  subject  them  to  the  strong  expression  of  public  in- 
dignation, would  be  to  defeat  their  purpose  ;  at  all  events,  would 

(f)  M.  Delolme,  in  his  Essay  on  the  British  Constitution,  after  commenting  on  tlje 
effect  of  laws  Avhieh  allow  to  the  people  full  scope  for  the  expression  of  their  sen- 
timents, concludes  his  observations  with  the  following  remarks  : — 

"  Id  short,  whoever  considers  what  it  is  that  constitutes  the  moving  principle  of 
what  we  call  great  affairs,  and  the  invincible  sensibility  of  man  to  the  opinion  of  his 
fellow-creatures,  will  not  hesitate  to  affirm,  that  if  it  were  possible  for  the  liberty  of 
the  press  to  exist  in  a  despotic  government,  and  (what  is  not  less  difficult)  for  it  to 
exist  without  changing  the  constitution,  this  liberty  would  alone  form  a  counterpoise 
to  the  power  of  the  prince.  If,  for  example,  in  an  empire  of  the  east,  a  place  could 
be  found,  which,  rendered  respectable  by  the  ancient  religion  of  the  people,  might 
ensure  safety  to  those  who  should  bring  thither  their  observations  of  any  kind,  and 
from  this  sanctuary  printed  papers  should  issue,  which,  under  a  certain  seal,  might 
be  equally  respected,  and  in  which,  their  daily  appearance,  should  examine  and  freely 
discuss  the  conduct  of  the  cadis,  the  pashas,  the  viziers,  the  divan,  and  the  sultan 
himself,  that  would  immediately  produce  some  degree  of  liberty." — Delolme  on  the 
Constitution  of  England,  303,  ed.  1816.  Again,  the  same  learned  foreigner  ob- 
serves, p,  304,  "  another  effect,  and  a  very  considerable  one,  of  the  lilerty  of  the 
press,  is,  that  it  enables  the  people  effectually  to  exert  those  means  which  the  con- 
stitution has  bestowed  upon  them,  of  influencing  the  motions  of  the  government." 

(w)  "Private  individuals,  unknown  to  each  other,  are  forced  to  bear  in  silence 
injuries  in  which  they  do  not  see  other  people  lake  a  concern.  Left  to  their  own 
individual  strength,  they  tremble  before  the  formidable  and  ever-ready  power  of 
those  who  govern,  and  as  the  latter  well  know,  and  are  even  apt  to  over-rate  the 
advantages  of  their  own  situation,  they  think  that  they  may  venture  upon  any  thing. 
But  when  they  see  that  all  their  actions  are  exposed  to  public  view,  that  in  conse- 
quence of  the  celerity  with  which  all  things  become  communicated,  the  whole  na- 
tion forms,  as  it  were,  one  continued  irritable  body,  no  part  of  which  can  be  touched 
•without  exciting  an  universal  tremor,  they  become  sensible  that  the  cause  of  one 
individual  is  the  cause  of  all,  and  that  to  attack  the  least  among  the  people,  is  to 
attack  the  whole  people."— Delolme  on  the  Constitution  of  England,  p.  318.  ed. 
1816. 


cv  PRELIMINARY  DISCOURSE. 

give  great  facility  to  resistence,  and  in  proportion,  render  any  such 
attempt   more   difficult  and   dangerous,  and   ultimate  success  the 

more  improbable  (a;). 
[  *cvi  ]  *The  influence  -which  the  subjection  of  the  press  to  the 

control  of  a  licenser  must  necessarily  have  on  the  spirit 
and  manners  of  a  free  nation,  is  not  to  be  disregarded,  on  account 
of  its  more  immediate  and  important  political  consequences.  What 
could  more  directly  tend  to  lower  and  subdue  the  spirit  of  a  free 
people,  and  to  render  them  unfit  for  the  enjoyment  and  maintenance 
of  their  rights,  than  to  subject  their  minds  to  a  state  of  intellectual 
thraldom  ?  What  more  effectually  restrain  and  fetter  the  exertions 
of  genius  and  of  talent,  than  the  melancholy  consciousness  that  their 
happiest  efforts  might  be  rendered  fruitless  and  abortive  ;  that  the 
avenues  to  fame,  honour  and  preferment,  might  be  closed  against 
them  by  the  caprice,  the  ignorance,  or  it  may  be  the  malice  of  a 
despotic  arbiter,  irresponsible,  and  from  whose  tribunal  there  was  no 
appeal.  Were  ages  to  be  spent  in  the  attempt,  no  other  scheme  or 
device  could  possibly  be  discovered  so  admirably  calculated  as  this, 
to  retard  the  progress  of  science  and  of  letters,  to  hinder  all  improve- 
ment in  religion,  in  politics,  or  morals,  to  enervate  the  public  mind 
and  prepare  it  for  every  species  of  degradation. 
Finally,  the  very  exercising  of  such  a  control  would  necessarily 

(x)  With  regard  to  those  who,  whether  from  personal  privileges,  or  by  virtue  of 
commission  from  the  people,  are  intrusted  with  the  higher  part  of  government,  as 
they,  in  the  mean  time,  see  themselves  exposed  to  public  view,  and  observed,  as 
from  a  distance,  by  men  free  from  the  spirit  of  p:irty,  and  who  place  in  them  but  a 
conditional  trust,  they  are  afraid  of  exciting  a  commotion,  which,  though  it  might 
not  prove  the  destruction  of  all  power,  yet  would  surely  prove  and  immediately  be 
the  destruction  of  their  own.  And  if  we  might  suppose,  that  through  an  extraordi- 
nary conjunction  of  circumstances,  they  should  resolve  among  themselves,  upon  the 
sacrifices  of  those  laws  on  which  public  liberty  is  founded,  they  would  no  sooner 
lift  up  their  eyes  towards  that  extensive  assembly  which  views  them  with  a  watch- 
ful attention,  than  they  would  find  their  public  virtue  return,  and  would  make  haste 
60  resume  that  plan  of  conduct,  out  of  the  limits  of  which  they  can  expect  nothing 
but  ruin  and  perdition. 

The  power  of  the  people  is  not  when  they  strike,  but  when  they  keep  in  awe  ; 
it  is  when  they  can  overthrow  every  thing  that  they  never  need  move;  and  Man- 
lius  included  all  in  four  words,  when  he  said  to  the  people  of  Rome — Ostendite 
Bellum  pacem  habebitis  Delolme  on  the  Constitution  of  England,  p.  321.  ed.  of 
1816. 


PRELIMINARY  DISCOURSE.  cvi 

add  greatly  to  the  responsibility  of  those  who  administered  the  affairs 
of  state  ;  for  professing  to  reject  all  that  was  injurious,  they  must 
be  taken  to  approve  and  sanction  all  that  they  allowed  to  be  pub- 
lished. 

It  remains  to  make  one  or  two  observations  on  the  abuse  of  this 
invaluable  privilege.     If  at  any  time  the  public  press  should  have 
become  generally  venal,  corrupt  and  licentious,  should 
teem  with  profligate  and  'immoral  publications,  with  artful     [  *cvii  ] 
and  studied  misrepresentations,  with  wanton  calumnies  on 
the  characters  of  the  well-deserving,  or  what  is  equally  offensive  with 
venal  and  fulsome    panegyric  upon  knaves,  the  necessary  conclusion 
would  be,  that  the  very  condition  of  society  was  tainted  and  unsound. 
To  say   that  the  press  is  corrupt  is  but  a  figurative  expression  ;  it 
means,  in  reahty,  that  one  set  of  men  publishes,  whilst  the  rest  of 
society  reads,  approves  of,  and  encourages  vicious  productions. 

But  if  such  should  be  the  disposition,  or,  at  all  events,  the  apathy 
of  the  public,  in  regard  of  the  morals  of  the  press,  as  to  encourage 
or  tolerate  its  ministers  in  committing  licentious  violations  of  truth 
and  decency,  it  is  manifest,  not  only  that  the  temptation  would  al- 
ways be  sufficient  to  censure  a  constant  supply,  at  all  risks,  of  scan- 
dalous and  illegal  matter,  but  that  all  attempts  to  earn  public  favour 
by  honest  means  would  be  vain  and  fruitless. 

The  public  in  fact  are,  or  ought  to  be,  the  arbiters,  di- 
rectors, and  movers  of  the  press  (?/),  those  who  daily  *min-     [  *cviii  ] 
ister  to  their  information  and  curiosity,  are  their  purvey- 

(?/)  Such  observations  are  still  more  pertinent,  where  the  public,  by  means  of  the 
trial  by  jury,  possess  the  salutary  and  constitutional  means  of  control.  Upon  this 
subject,  Lord  Camden,  on  an  occasion  of  great  importance,  thus  expressed  himself. 
Case  of  seizure  of  papers,  11  St.  Tr.  328. 

"  Before  I  conclude,  I  desire  not  to  be  understood  as  an  advocate  for  libels.  A\\ 
civilized  governments  have  punished  calumny  with  severity  and  with  reason ;  for 
these  compositions  debauch  the  manners  of  the  people ;  they  excite  a  spirit  of  dis- 
obedience, and  enervate  the  authority  of  government ;  they  provoke  and  excite  the 
passions  of  the  people  against  their  rulers,  and  rulers  oftentimes  against  the  people. 

"After  this  description,  I  shall  hardly  be  considered  as  a  favorer  of  these  perni- 
cious productions.  I  will  always  set  my  face  against  them  when  they  come  before 
me  ;  and  shall  recommend  it  most  warmly  to  the  jury  iilways  to  convict,  when  the 
proof  is  clear.  They  will  do  well  to  consider  that  unjust  acquittals  bring  an  odium 
upon  the  press  itself,  the  consequence  whereof  may  be  fatal  to  liberty ;  for  if  kings 

Vol.  1.  17 


cvui  PRELIMINARY  DISCOURSE. 

ors  and  agents.  In  the  discharge  of  the  important  and  lucrative 
office  of  catering  for  and  ministering  to  the  hterary  appetite  of  the 
public,  it  is  manifest  that  candidates  for  popular  favor  must  consult 
the  public  taste,  and  that,  as  there  will  never  be  -wanting  talent, 
ability,  and  diligence,  adequate  to  the  enlightening  and  improving 
the  public,  so  long  as  veracity,  integrity,  and  ability,  are  recommen. 
dations  to  their  patronage ;  on  the  other  hand,  agents  v^'ill  always  be 
ready  to  prostitute  their  talents  for  the  gratification  of  a  corrupt 
and  vitiated  taste. 

The  real  corrupters  of  the  press  are  the  public  themselves,  and 
the  licentiousness  of  the  press,  though  it  tend  greatly  to  increase 
the  evil,  is  yet  to  be  regarded  rather  as  symptomatic  of  a  defect  in 
public  morals,  than  as  the  cause  of  the  declension. 

If  a  man  patronises  a  series  of  licentious  publications  by  purchas- 
ing them,  or  even  contributing  towards  the  purchase,  what  right  can 
he  have  to  complain  of  the  impurity  of  the  public  press,  the  immoral- 
ity of  the  age,  or  the  inadequacy  of  municipal  restraint ;  it  is  he 
who  offends  against  truth,  against  decency  and  morals, 
[  *cix  ]  who,  *with  some  thousand  others,  encourages  and  supports, 
in  a  state  of  affluence,  the  less  guilty  minister  of  the 
press;  the  latter  publishes  that  which  is  scandalous  and  impure, 
merely  because,  so  long  as  he  finds  it  lucrative  to  do  so,  he  must  neces* 
sarily  suppose  that  he  gratifies  those  who  pay  him  for  such  services. 
In  point  of  morals,  to  contribute  to  the  existence  and  diffusion  of 
noxious  and  offensive  publications,  is  to  share  largely  in  the  guilt. 

In  short,  as  there  can  be  no  greater  security  for  the  truth  and 
honor  of  public,  or  the  integrity  of  private  men,  than  the  wholesome 
apprehension  of  pubhc  censure,  it  is  of  vital  importance  to  society 
to  consider  that  the  preservation  of  this  mighty  and  salutary  moral 
power,  efficacious  and  entire,  rests  wholly  uith  the  people  themselves  ; 
that  they  must  not  look  for  effectual  protection  from  the  municipal 
law,  or  expect  a  remedy  for  the  natural  consequence  of  their  own 

and  great  men  cannot  obtain  justice  at  their  hands  by  the  ordinary  course  of  law, 
they  may  at  last  be  provoked  to  restrain  that  press,  which  the  juries  of  their  country 
refuse  to  regulate.  Where  licentiousness  is  tolerated,  liberty  is  in  the  utmost  danger, 
because  tyranny,  bad  as  it  is,  is  better  than  anarchy,  and  the  worst  of  governments  is 
more  tolerable  than  no  government  at  all." 


PRELIMINARY  DISCOURSE.  cix 

supmeness  ;  and  that,  if  by  culpable  and  careless  indifference,  they 
suffer  the  public  press  to  be  corrupted  and  perverted  to  evil  purposes 
they  not  only  reject  a  mighty  engine  adequate  to  the  protect-nof 
thpir  best  interests,  but  surrender  it  to  enemies  who  .viU  fatally 
apply  it  to  undermine  the  very  foundations  of  social  happiness. 

The  abuse  of  the  liberty  of  the  press  tends  most  directly  to  de- 
prive  it  of  all  salutary  and  beneficial  power.     The  influence  of  public 
opinion  on  political  conduct,  operates  on  a  mixed  principle  of  shame 
and  of  interest,  remotely,  perhaps,  on  a  feeling  of  fear,  but  nothing 
can  more  strongly  tend  to  obliterate  the  sense  of  shame,  and  to  ren- 
der men's  minds  obtuse  and  callous  to  the  impression  of 
public  opinion,  than  daily  attacks  *upon  character  dictat-       [   ex  J 
ed  by  party  feeling,  and  promulgated  to  the  world  by  a 
corrupt  and  venal  press.     The  tendency  of  a  system  of  misrepre- 
sentation, consisting  of  illiberal  abuse  on  the  onehand  and  of  im- 
pure panegyric  on  the  other,  must  be  to  confound  guilt  with  inno- 
cence in   the   opinion   of  the   world,  to  render  men  equally  deaf 
to  the  voice  of  censure  or  of  praise  ;  and  when  they  were  no  longer 
deterred  from  acts  of  political  apostacy  and  violations  of  public  laith 
by  a  principle  of  shame,  it  is  obvious,  that  those  very  motives  of 
self-interest,  which,  connected  with  the  love  of  character,  constitute 
valuable  incentives  to  useful,  laudable,  and  honourable    exertion, 
would,  without  such  a  corrective,  tend  to  the  most  selfish  and  un- 
worthy actions  ;  all  restraint  founded  in  fear  would  cease  when  the 
honest  fervour  of  popular  indignation  had  degenerated  into  the  mutual 

hatred  of  contending  factions.  .       .      ,        ... 

Next  as  to  limits  of  penal  restraint.  The  hmits  of  such  restraint 
must  depend  on  the  natiire,  quality,  and  consequences  of  the  com- 
munication; 2ndly,  on  the  act  of  the  party  who  makes  it,  and  the 
means  of  communication  used;  Srdly,  on  his  mf.«tion ;  or,  4thly, 
on  circumstances  collateral  to  the  act. 

First,  then,  as  to  the  nature,  quality,  and  consequences  of  the 
communication.  As  the  very  object  of  coercion  is  the  prevenUon  of 
public  mischief;  it  is  by  no  means  essential  to  an  offence  of  this  na- 
ture, that  the  criminal  object  of  a  noxious  publication  should  have 
been  actually  accomplished  ;  it  is  sufficient  that  the  communication 
should  directly  and  immediately  tend  to  produce  mischief  to  the 
public. 


cxi  PRELIMINARY  DISCOURSE. 

[  *cxi  ]  *And  this,  for  several  reasons,  both  because  actual  proof 
of  evil  consequences  to  the  public  would,  from  the  very 
nature  of  the  case,  be  frequently  impossible,  tliough  highly  presum- 
able ;  and,  2ndly,  because  -where  great  mischief  is  to  be  apprehend- 
ed, it  is  far  more  pohtic  to  interfere  at  an  early  stage,  and  to  arrest 
the  progress  of  the  evil,  than  to  wait  for  its  consummation  ;  and, 
Srdly,  because,  as  far  as  regards  the  moral  guilt  of  the  offender,  his 
offence  is  completed  by  the  very  act  of  publication. 

Hence,  as  far  as  the  evil  consequences  of  a  publication  are  con- 
cerned, it  is  necessary  that  the  offence  against  the  public  should  be 
defined  and  limited,  not  by  the  effect  actually  produced,  but  by  the 
tendency  of  the  matter  published  to  produce  it      If,  for  instance,  an 
individual,  with  a  view  to  bis  own  private   gain,  were  to  publish  an 
address,  inciting  a  discontented   populace  to  burn  all  stacks  of  corn 
within  a  particular  district,  the  law  of  the  country  would  be  absurd 
and  contemptible,  which   provided  no  punishment  for  so  daring  an 
outrage,  until  proof  could  be  givin  that  some  incendiary  had  destroyed 
his  neighbour's  property,  in  compliance  with  so  unprincipled  a  re- 
commendation.   The  very  attempt  to  excite  to  the  commission  of  such 
outrages  is  in  itself  a  dangerous  violation  of  the  principles  of  moral- 
ity and  natural  justice :  on  the  question  whether  such  an  attempt 
ought  to  meet  with  immediate  reprobation  and  punishment,  no  con- 
flict of  opposite  advantages  and  disadvantages  could  possibly  occur, 
it  would  clearly  be  for  the  benefit  of  tKe  community,  that 
[  *cxii  ]     so  atrocious  an  attempt  should  *be  checked  by  penal  visi- 
tation at  the  very  earliest  opportunity. 
It  is  obvious,  that  it  must  not  only  be  necessary  to  restrain  com- 
munications which   tend  directly  to  a  breach  of  the  law,  by  inciting 
others  to  the  actual  commission  of  crimes  prohibited  by  the  law,  but 
also  those  which  tend  to  the  subversion  of  religion,  or,  in  general, 
to  the  destruction  of  the  principles  of  virtue  and  morality,  which 
are  essential  to  good  conduct,  order,  and  decency.     Again,  it  is 
plain,  that  the  degree  of  tendency  cannot  be  material  as  a  limit  to 
the  offence,  whatever  its  operation  may  be  in  adjusting  ttie  quantum 
of  punishment.     First,  because  any  tendency  to  produce  public  mis- 
chief, must,  pro  tanto,  be  injurious  to  society  ;  and  secondly,  be- 
cause the  extent  to  which  the  mischief  may  be  tolerated,  is  not  ca- 
pable of  any  precise  definition. 


PRELIMINARY  DISCOURSE.  cxii 

Complaints  have  not  unfrequently  been  made,  even  in  this  country 
that  the  law  of  libel  is  to  vague  and  uncertain,  and  that  neither  the 
common  nor  the  statute  law  sufficiently  define  what  constitutes  a 
libel. 

It  may  be  of  use  to  consider  whether  absolute  and  certain  prohi- 
bitions are  not  excluded  by  the  very  nature  of  the  subject  matter, 
and  whether,  if  such  were  imposed,  they  must  not  either  consist  in 
general  and  peremptory  rules,  which  would  encroach  greatly  on  the 
freedom  of  communication,  or  in  minute  and  specific  ones,  the  partic- 
ularity of  which  would  subject  them  to  the  easiest  evasions.  The 
law  may  either  totally  prohibit  all  discussion  on  a  particular  and 
specific  subject  or  may  go  the  length  of  tolerating  all  that  can  be 
said  or  written  upon  it  ;  but  there  is  scarcely  any  ques- 
tion, either  of  *general  or  individual  interest,  in  respect  [  *cxiii  ] 
of  which  total  prohibition  or  entire  toleration  would  not 
be  prejudicial  to  the  community.  A  total  prohibition  would,  in  most 
cases,  if  not  in  all,  be  inconsistent  with  the  great  principle  of  civil 
liberty,  for  a  penal  restraint,  would  be  imposed  to  a  greater  extent 
than  was  necessary  for  the  welfare  of  society  ;  on  the  other  hand, 
unrestrained  license  of  communication  would  be  liable  to  the  great- 
est abuse,  and  open  the  door  to  great  if  not  intolerable  mischief. 

Where  it  is  on  the  one  hand  beneficial  to  society  that  freedom  of 
communication  should  be  tolerated  to  a  great  extent,  but  where,  on 
the  other,  it  would  be  highly  inconvenient  and  mischievous  to  permit 
unbounded  license  to  the  abuse  of  that  liberty,  and  consequently, 
where  a  boundary  is  necessary,  the  establishment  and  preservation 
of  a  proper  limit,  must  always  be  a  work  of  nicety  and  difficulty. 
It  is,  however,  exceedingly  clear,  that  the  line  of  interdiction  cannot 
be  regulated  by  any  prohibition  of  particular  sentiments  or  language. 
Injurious  modes  of  expression  are  far  too  variable  to  admit  of  any 
precise  rules  or  regulations,  the  laws  which  descend  to  particulars 
on  such  subjects,  and  which  forbid  specific  expressions,  otherwise 
than  by  way  of  example,  are  usually  the  work  of  early  and  inexpe- 
rienced legislators,  and .  cannot  possibly  be  of  any  practical  utility, 
subject,  as  they  necessarily  are,  to  the  easiest  evasions.  Such  ofiFen- 
ces,  in  truth,  admit  of  efiectual  description,  except  in  respect  of  the 
effects  which  they  produce,  or  which  they  immediately  tend  to  prO' 


cxiii  PRELIMINARY  DISCOURSE. 

duce.  Any  attempt  to  enumerate,  with  a  view  to  express,  and  par- 
ticularly prohibit  all  the  offensive  means  by  which  an  ill 
[  *cxiv  ]  disposed  *person  might  ^attempt  to  destroy  the  public 
sense  of  modesty  and  decency,  would  be  impracticable 
and  absurd  ;  if  it  be  necessary  that  such  practices  should  be  re- 
strained by  the  municipal  law,  it  is,  if  not  impossible,  at  least  diffi- 
cult, that  the  offence  should  otherwise  be  described  than  generally 
by  a  prohibition  to  publish  that  which,  being  immodest  and  indecent, 
directly  tends  to  corrupt  and  vitiate  the  morals  of  the  public.  It 
may  be  objected  that  any  such  general  description  is  uncertain  and 
indefinite.  Be  it  so,  what  then  ?  No  other  inference  seems  to 
result,  than  that  human  laws  do  not  admit  of  perfection,  and  that 
no  general  definition  can  be  framed,  which  shall  be  applicable  to 
acts  capable  of  infinite  variety,  with  absolute  certainty. 

The  publisher  of  a  libel  has  no  more  reason  to  complain  that  the 
law  does  not  precisely  define  what  shall  constitute  a  libel  in  every 
possible  form  which  the  offence  may  assume,  than  a  party  guilty  of 
any  mechanical  and  corporeal  nuisance,  has  a  right  to  object  that 
the  law  does  not  define  what  precise  extent  of  inconvenience  he  may 
inflict  on  others,  without  a  violation  of  the  law. 

A  man  has  a  right  to  exercise  his  trade,  but  he  has  no  right  so  to 
exercise  it  as  to  occasion  mischief  to  the  public  in  the  neighborhood 
of  the  place  where  it  is  carried  on.  To  what  extent  may  he  carry 
it  on  without  offence  against  the  law,  and  without  subjecting  himself 
to  criminal  responsibility  ?  Can  the  law  define  this  otherwise  than 
by  the  general  prohibition  not  to  injure  others  ;  and  must  not  every 
man,  at  his  own  peril,  take  care  so  to  conduct  himself  and  his  affairs, 
that  the  public  may  not  be  injured  ?  It  would  be  as  reasonable  for 
one  who  carried  on  an  offensive  trade,  to  complain  that 
[  *cxv  ]  *the  law  had  not  defined  how  many  cubical  feet  of  foul 
and  pestilential  air  emitted  in  a  given  time,  would  consti- 
tute a  nuisance,  as  for  a  libeller  to  object  that  the  law  had  not  define  1 
the  percise  quantum  of  noxious  matter,  which  he  should  be  allowed 
to  send  forth  by  the  aid  of  the  press,  before  he  incurred' any  legal 
censure. 

When  the  law  says  you  are  free,  use  your  tongue,  your  pen,  or 
even  the  press,  at    your  discretion  ;    this  state  of  freedom  must 


PRELIMINARY  DISCOURSE.  cxv 

still  be  subject  to  the  condition,  that  he  who  abuses  his  intellectual 
liberty  and  powers  of  offence  to  the  injury  of  others,  must  be  re- 
sponsible for  that  abuse  in  the  same  manner  as  when  he  exerts  his 
physical  strength  for  such  purposes.  Liberty,  divested  of  this  con- 
dition, would  be  savage,  not  civilized  liberty.  But  under  such  a 
condition,  where  liberty  is  the  general  rule,  abuse  of  that  liberty 
the  exception,  where  so  wide  a  range  of  free  agency  is  permitted, 
it  is  for  the  agent  to  take  care,  at  his  peril,  that  he  use  not  his  lib- 
erty to  the  injury  of  others,  either  in  their  individual  or  aggregate 
capacities. 

Where  the  modes  of  effecting  mischief  are  of  infinite  variety, 
the  illegality  of  acts  must  usually  be  defined  by  their  actual  con- 
sequences  or  immediate  tendency,  rather  than  by  any  detail  of  the 
means  used.     If  a  man  were  to  drive  another  from  his  residence 
by  setting  up  a  pestilential  manufactory  in  the  neighbourhood,  it 
would  be  a  strange  defence  to  say,  there  is  no  law  which  prohibits 
me  from  consuming  the  particular  drugs  which  I  used.     The  law 
forbids  the  use  of  any  in  such  a  manner  as  to  occasion  such  conse- 
quences ;  and  when  the  law  says  that  no  man  shall  be  allowed  to 
degrade  another  from  his  place  in  society  by  deliberate 
and  malicious  *publications,  which  expose  him  as  the  ob-     [  *cxvi  ] 
ject  of  hatred,  contempt,  or  ridicule,  with  what  reason 
can  the  offender  object  that  what  may  render  a  man  odious  or  con- 
temptible, is  not  sufiiciently  defined  ?     It  is  by  the  effect  or  imme- 
diate tendency  only  that  such  an  injury  can  be  described  (3). 

In  the  next  place,  is  it  essential  that  the  communication  be  false 
as  well  as  noxious  ? 

The  TRUTH  of  the  imputation  affords  a  decisive  answer  to  an  ac- 
tion for  damages,  for  the  plain  reason,  that  a  guilty  party  has  no 
right  to  a  character  free  from  that  imputation ;  and  if  be  has  no 
right  to  it,  he  cannot  in  justice  recover  damages  for  the  loss  of  it ; 
it  is  damnum  absque  wjurid  (a)  ;  but  one  great  object  of  criminal 
animadversion  is  the  preservation  of  public  peace  and  good  order, 

(s)  See  the  prohibitory  definitions  of  the  Code  penal  of  France,  supra,  xxxiii.; 
of  the  Laws  of  Athens,  xxxiv.;  of  Rome,  xxxi.;  of  Scotland,  xxxii. ;  of  Spain, 
infra,  cxliv.  of  England,  supra,  xxx.,  infra,  vol.  2,  210, 

(o)  Supra,  xli. 


cxvi  PRELIMINARY  DISCOURSE. 

and  those  interests  cannot  be  secured  without  restraining  the  pub- 
lication, at  least  the  deliberate  publication,  in  print  or  by  writing, 
of  that  which  is  true,  as  well  as  of  that  which  is  false  ;  and  there- 
fore, though  in  principle  the  truth  of  an  imputation  be  a  decisive 
answer  to  an  action  for  damages,  it  is  not  an  answer  to  the  com- 
plaint on  the  part  of  the  public,  that  the  publication  tends  to  dis- 
turb the  peace  of  society  (6). 
[  *cxvii  ]  *The  doubts  which  have  been  entertained  on  the  ques- 
tion, whether,  with  a  view  to  penal  consequences,  truth 
may  constitute  a  libel,  relate  principally,  if  not  exclusively  to  libels 
which  impute  moral  blame  to  individuals,  and  not  to  those  which  do 
not  reflect  upon  any  person  in  particular,  but  which  are  deemed  crimi- 
nal, from  their  tendency  to  endanger  the  security  of  society,  by  extir- 
pating, or  at  lea:t  weakening,  that  sense  of  religious  and  moral  ob- 
ligation, upon  which  the  happiness  and  well  being  of  society  so  essen- 
tially depend.  To  assert  that  blasphemous,  obscene,  and  criminal 
acts  may  be  freely  described  and  represented,  because  they  are  true 
that  is,  because  such  things  have  been  acted,  would  be  too  absurd 
a  position  to  be  advanced  or  if  advanced,  to  need  refutation. 

(6)  The  law  of  England  supplies  many  analogous  distinctions.  If  A.  has  a  right 
to  a  house,  of  which  B.,  however,  is  in  full  possession,  if  A.  were  to  enter  violently 
with  an  armed  force,  and  B.  were  to  bring  an  action,  he  could  recover  no  damages ; 
for,  however  improper  the  mode  of  entry  might  be,  yet  it  was  no  injury  to  B.'s  posses- 
sion, for  he  had  no  title  to  it  ;  but,  with  respect  to  the  public,  it  would  be  no  defence 
to  A.  on  an  indictment  for  a  breach  of  the  peace,  to  allege  that  he  was  the  owner, 
and  that  B.'s  possession  was  wrongful,  for  it  would  be  no  answer  to  his  having  com- 
mitted a  breach  of  the  peace;  and  though  the  real  owner  was  entitled  to  the  pos- 
session, he  was  bound  to  vindicate  his  right  by  legal  and  peaceable  means.  So  if 
one  were  to  beat  or  wound  an  outlaw,  the  latter  could  not  recover  damages,  yet  the 
act  would  be  highly  penal. 

Although  the  rule  that  the  truth  of  a  libel  cannot  afford  a  defence  to  a  criminal 
prosecution,  as  it  may  to  an  action  to  recover  damages,  seems  to  rest  on  clear  and 
satisfactory  grounds,  yet  much  obscurity  and  confusion  has  prevailed  on  the  subject 
which  may  Aiirly  be  attributed  to  the  doctrines  of  the  civil  law.  The  civil  law 
made  no  distinction  between  the  criminal  and  civil  liability  of  a  libeller.  The  con- 
sequence has  been,  that  even  in  this  country,  where  the  doctrines  of  the  civil  law 
have  been  received  with  a  great  degree  of  jealousy,  it  was  long  before  the  point  was 
completely  settled,  that  the  truth  afforded  a  complete  justification  in  the  case  of  an 
action  for  written  slander,  any  more  than  it  did  iu  the  case  of  an  indictment.  See 
the  observations  of  Lord  Hardwicke,  in  li.  v.  Roberts,  Sel.  N.  P.  986. 


PRELIMINARY  DISCOURSE.  cxviii 

*Again,  where  an  individual  was  subject  to  any  person-  [  *cxviii  ] 
al  defect  or  misfortune,  or  was  unfortunate  in  any  of  his 
relations,  if  any  one  on  that  account  were  to  expose  him  from  day 
to  day,  and  hold  him  out  as  the  object  of  public  contempt  and  ridi- 
cule, it  could  not  be  doubted  that  the  truth,  as  was  justly  observed  by 
a  celebrated  statesman  (c) ,  would  rather  be  an  aggravation  than  an 
excuse,  the  world  being  too  apt  to  consider  men  as  contemptible  for 
their  misfortunes  than  as  odious  for  their  vices. 

Suppose  then,  that  the  alleged  libel  imputes  some  legal  or  moral 
delinquency  to  another,  is  then  the  truth,  the  Veritas  convicii,  as  it 
has  been  termed  by  the  civil  law,  to  be  admitted  as  a  justification  ? 
Now,  previous  to  making  a  few  observations  upon  this  point,  as  a 
mere  question  of  legal  policy,  that  is,  of  general  expediency,  into 
which  it  must  ultimately  be  resolved,  it  may  not  be  improper  briefly 
to  remark  upon  the  ordinary  popular  objection  made  to  the  doctrine 
that  truth  may  be  a  libel.  It  is  seldom  that  the  public  voice  exclaims 
against  a  law  in  the  absence  of  all  reason  for  complaint ;  whenever, 
therefore,  that  voice  is  heard,  all  thinking  men  will  listen  to  it  with 
attention,  a  benefit  will  be  attained,  either  by  amendment  of  the 
law,  where  the  complaint  is  well  founded,  or  by  reconciling  men's 
minds,  where  it  can  be  shown  that  the  complaint  is  erroneous,  and 
that  the  law  is  just. 

The  popular  objection  to  the  doctrine  that  truth  may  be  a  libel, 
arises  partly  from  the  want  of  a  full  understanding  of  the 
grounds  and  extent  of  the  rule,  but  *chiefly  and  princi-     [  *cxix  ] 
pally  from  a  misapplication  of  an  honorable  and  generous 
feeling  in  favour  of  truth. 

The  notion  that  the  publication  of  that  which  is  true  ought  not  to 
be  deemed  criminal,  is  fallacious  in  a  moral  as  well  as  in  a  legal  point 
of  view  ;  it  is,  in  efiect,  to  assume  that  the  means  must  sanctify  the 
end,  and  that  a  good  instrument  cannot  be  perverted  to  unworthy 
and  pernicious  purposes.  To  assert  that  the  truth  may  in  all  cases, 
and  under  all  circumstances,  be  published,  is  a  position  as  erroneous 
in  morals  as  in  law ;  truth,  as  well  as  falsehood,  may  be  used  as 
the  instrument  of  creating  misery,  and  where  the  object  is  immoral, 

(c)  Mr.  Fox,  in  the  debate  on  the  Libel  Bill,  vide  supra,  Ixv. 

Vol.  I.  18 


cxix  PRELIMINARY  DISCOURSE. 

the  means  by  which  it  is  attained,  cannot  be  innocent.  If  a  man 
•were  suddenly  to  communicate  to  one,  in  a  weak  state  of  health, 
some  very  afflicting  and  distressing  intelligence,  with  intent  that 
the  suddenness  of  the  shock  should  produce  instant  death ;  would 
not  the  executed  purpose  amount,  m  foro  conscientice,  io  murder, 
and  would  not  the  plea  be  frivolous  and  absurd,  that  the  fact  was 
true  ? 

If  the  means,  in  a  moral  point  of  view,  be  regarded  as  material, 
the  effect  must  be  to  aggravate  the  offence,  in  consideration  that 
truth  has  been  perverted  and  made  the  instrument  of  perpetrating 
a  crime. 

The  communication  of  the  truth  may  not  unfrequently  constitute 
a  most  treacherous  fraud,  criminal  in  point  of  law,  as  well  as  morals  ; 
for,  in  some  instances,  it  is  essential  that  the  law,  should  impose  si- 
lence, and  that  even  under  the  obligation  of  an  oath.  In  all  such 
instances,  the  consideration   that  the  truth  is  revealed,  so  far  from 

affording  any  excuse,  constitutes  the  crime. 
[  *cxx  ]  *With  reference  to  one  of  the  principal  grounds  on 

which  the  publication  of  a  defamatory  libel  is  to  be  re- 
garded as  an  offence  against  the  public,  and  without  reference  to  any 
considerations  of  extrinsic  policy,  it  seems  to  be  sufficiently  plain 
that  the  truth  of  the  imputation  ought  not  to  be  admitted  as  a  defence 
inasmuch  as  it  is  quite  consistent  with  the  mischief  intended  to  be 
prevented. 

As  any  direcc  solicitation  to  violate  a  law  devised  for  public  secu- 
rity, must  needs  be  an  offence  against  the  law,  every  solicitation  to 
break  the  public  peace  must  in  principle  be  penal.  For  as  no  laws 
can  properly  allow  that  to  be  effected  by  indirect  means,  the  direct 
doing  of  which  is  prohibited,  it  follows,  that  it  would  be  inconsistent 
that  a  law,  which  provided  for  public  security,  should  permit  its  pro- 
visions to  be  in  effect  violated,  by  allowing  the  publication  of  defam- 
atory imputations,  which  tended  immediately  to  disturb  that  secu- 
rity. The  law  therefore,  which  prohibits  such  offences,  does  so  for 
one  reason  at  least,  which  is  wholly  independent  of  the  consideration 
whether  the  imputation  bo  in  itself  true  or  false. 

If,  then,  without  reference  to  any  consideration  of  extrinsic  poli- 
cy, but  looking  only  to  the  end  and  object  of  penal  restraint,  the 


PRELIMINARY  DISCOURSE.  cxx 

truth  of  a  defamatory  communication  ought  not  to  constitute  an  ex- 
ception in  favour  of  the  publisher,  how  stands  the  question  on  grounds 
of  extrinsic  policy  ? 

On  the  one  hand,  t*^  give  a  general  and  absolute  license  to  pub- 
lish tlat  which  was  true  concerning  others,  however  defamatory  in 
its  nature  and  injurious  in  its  consequences,  and  -without 
any  exception  as  to  motive,  *even  though  the  act  were  [  *cxxi  ] 
done  with  the  illegal  intention  to  provoke  another  to  acts 
of  aggression  and  violence,  would  necessarily  and  unavoidably  occa- 
sion frequent  intepruptions  of  the  public  peace,  personal  conflicts, 
broils,  and  bloodshed,  the  natural  issues  of  personal  aflfronts.  It  is 
also  obvious,  that  if  the  law  were  to  tolerate  the  pubhcation  of  criminal 
charges  by  one  subject  against  another,  under  the  condition  that  the 
accuser,  when  called  on,  should  establish  its  truth  in  a  court  of  jus- 
tice, a  new  and  anomalous  tribunal  would  in  effect  be  enacted  of  a 
dangerous  and  mischievous  description.  Suppose,  that  the  accused 
defers  to  the  jurisdiction,  and  puts  forth  his  answer,  which,  in  most 
cases,  would  be  of  a  recriminatory  nature,  who  are  to  be  the  arbiters  ? 
The  public.  And  what  means  has  this  extraordinary  jury  of  decid- 
ing on  conflictino;  statements  ?  what  can  be  the  result  but  mutual  ex- 
asperation,  if  not  violence  ?  Let  it  even  be  supposed,  that  the  de- 
linquent is  convicted  in  the  judgment  of  the  public,  the  penalty,  no 
doubt,  is  severe — forfeiture  of  character,  but  even  -where  such  were 
the  result,  an  evasion  and  default  of  justice  -would  be  occasioned  by 
withdrawing  the  cognizance  of  the  crime  from  the  ordinary  legal  tri- 
bunal where  the  offence  would  have  been  punished  according  to  the 
wisdom  of  the  law,  and  loss  of  reputation  would  have  been  a  collat- 
ral  but  just  and  certain  consequence. 

It  requires,  however,  little  of  observation  or  argument  to  show 
the  inconvenience  of  permitting  deliberate  charges  of  specific  crimes 
to  be  made  otherwise  than  according  to  the  ordinary  course  and 
forms  of  justice,  provided  by  the  law  itself.  It  would, 
obviously,  *be  inconsistent  -with  the  first  principles  of  legal  [  *cxxii  ] 
policy,  that  criminal  accusations  should  be  thus  made 
before  an  incompetent  and  self-constructed  courc,  to  the  neglect  of 
the  legal  and  appropriate  tribunals.  Even  where  such  extrajudicial 
charges  were  true,  the   consequence  would  at  least  be  delay,  and 


cxxu 


PRELIMINARY  DISCOURSE. 


usually  an  utter  evasion  of  justice.  Although  these  observations 
are  not  -n-bolly  applicable,  where  the  defamation  does  not  consist  in 
the  imputation  of  a  crime  cognizable  by  the  law — for  justice,  in 
such  cases,  is  neither  evaded  nor  delayed  ;  yet,  as  far  as  regards 
the  hardship  to  the  individual,  or  the  mischief  to  the  public,  the  evil 
may  be  equally  great. 

It  may  be  strongly  urged  that,  to  allow  this  would  be  in  effect  to 
extend  the  criminal  code  indefinitely,  to  make  every  breach  of  moral 
obligation,  every  sin  against  conscience,  a  crime  of  temporal  cogniz- 
ance.    If  general  hcense  were  given  for  every  one,  as  he  pleased, 
to  publish  such  delinquencies  with  impunity,  so  as  he  could  after- 
wards prove  them  to  be  true,  it  is  obvious,  that  every  such  justifica- 
tion would  be  equivalent  to  a  judicial  charge,  the  penalty  forfeiture 
of  character,  and  thus  every  defamation,  through  the  medium  of  a 
public  newspaper  or  journal,  might   be  but  preparatory  to  a  formal 
and  judicial  inquiry.     To  tolerate  such   a  proceeding,  would,  it  is 
plain,  be  highly  mischievous  and  inconvenient.     To  such  an  extent 
as  is  consistent  with  public  good,  it  is  for  the  law  to  define  offences, 
and  to  punish  offenders  ;  but  beyond  this  pale,  must  alWays  exist  an 
indefinite  multitude  of  offences  against  morality,  which  the  law  does 
not  visit,  for  the  plain  reason,  that  a  greater  degree  of 
[  *cxxiii  ]    mischief  and  *inconvenience  would  result  to  society  from 
interfering  with  such  delinquencies,  than  benefit   from 
attempting  to  prevent  them  by  the  aid  of  penal  censures.     To  allow 
such  a  justification  in  a  criminal  proceeding,  would  be  to  defeat  the 
policy  of  the  law  in  this  respect.     This  argument  may  perhaps  be 
met  with  the  observation,  that,  notwithstanding  the  inconvenience 
which  may  result  from  the  investigation  of  mere  moral  delinquencies, 
it  has  already  been  admitted,  that  such  a  justification  ought  to  be 
allowed  as  a  defence  to  the  claim  for  damages  in  a  civil  proceeding. 
The  answer  is,  that  the  cases  are  not  parallel ;  the  admitting  such  a 
justification,  in  the  civil  proceeding,  is  a  matter  of  necessity,  arising 
from  the  very  nature  of  the  claim  to  damages,  and  which  it  would  be 
impossible  to  avoid,  without  violating  the  essential  principle  on  which 
the  civil  remedy  is  founded,  and  allowing  a  delinquent  to  make  a  pro- 
fit of  his  crimes.     In  the  present  instance,  no  such  necessity  or  diffi- 
culty warrants  an  extension  of  the  inconvenience  ;  here  the  aggrieved 


PRELIMINARY  DISCOURSE.  cxxiii 

party  who  seeks  redress  is  the  pubhc,  not  the  individual  defamed  ; 
and  the  public  is  entitled  to  security,  though  the  charge  be  true,  and 
though  the  individual  may  have  no  just  title  to  damages. 

In  the  next  place,  it  may  well  be  contended,  that  to  permit  such  a 
justification  as  a  defence  for  publishing  an  extrajudicial  charge  of  a 
specific  crime,  would  frequently  be  attended  with  positive  injustice 
to  the  party  defamed,  and  would  open  a  door  to  great  mischief  and 
oppression. 

How  frequently  must  it  happen  that  the  self-constituted 
public  accuser  knows  the  facts  but  imperfectly,  *and,  [*cxxiv] 
consequently,  how  great  a  temptation  would  the  allowing 
such  a  justification  afford  to  malicious  and  ill  disposed  persons  to 
venture  upon  bold  and  confident  charges,  which,  after  all,  could  not 
be  substantiated.  Again,  absolute  and  positive  injustice  would 
frequently  be  done  in  creating  a  general  and  public  prejudice  on  the 
very  subject  to  be  afterwards  tried,  by  allowing  the  whole  proceed- 
ing to  be,  as  it  were,  prefaced  by  an  ex  'parte  and  highly  colored 
representation  of  the  facts ;  circumstances  might  be  stated  in  sup- 
port of  it,  which  would  not  be  legal  evidence  on  the  trial,  but 
which  those  appointed  to  decide,  whose  minds  had  been  previously 
occupied  and  excited  by  an  unfair  representation,  might  not  be  able 
to  dismiss  from  their  consideration  (cZ). 

But,  suppose  the  prosecution  to  be  instituted  not  by  the  party  de- 
famed, but  by  another,  it  is  plain,  that  the  greatest  injustice  might 
be  done  in  proceeding  to  an  investigation  of  the  charge  alleged, 
which  so  deeply  involved  his  character  and  reputation,  without  af- 
fording him  the  opportunity  of  defence. 

((£)  And  therefore,  the  admitting  such  a  justification  would  be  wholly  inconsistent 
with  ihat  wholesome  principle  recognized  by  the  law  of  England,  and  also  of  Scot- 
land, (supra,  p.  Ixxx.)  which  renders  it  illegal  to  publish  ex  parte  statements  of 
criminal  proceetlings,  even  though  they  have  taken  place  before  the  proper  tribunal, 
and  upon  the  ground  of  which  most  important  criminal  trials  in  this  country  have 
been  postponed,  least  the  parties  accused  should  suffer  from  undue  prejudice.  To 
hold  that  the  publication  of  an  ex  parte  criminal  proceeding  before  a  magistrate  is 
illegal,  on  account  of  the  tendency  of  such  a  practice  to  divert  the  fair  course  of  im- 
partial justice,  and  yet  to  permit  a  mere  unprivileged,  unauthorized  ex  parte  statement, 
not  sanctioned  by  a  judicial  oath,  or  by  any  form  or  color  of  legal  proceeding,  would 
be,  to  say  the  least,  highly  inconsistent. 


cxxv  PRELIMINARY  DISCOURSE. 

[  *cxxv  ]  'If  this  could  be  done,  it  would  be  in  the  power  of  any 
two  ill  disposed  persons  most  effectually  to  ruin  the  char- 
acter of  a  third,  by  the  intervention  of  legal  process.  And  even,  if 
legal  machinery  could  be  devised  for  the  purpose  of  making  that 
third  person  a  party  to  the  proceeding,  which  absence  or  other  cir- 
cumstances would  frequently  render  impracticable,  it  would  be  a  most 
intolerable  hardship  that  every  man  should  thus  in  effect  be  liable  to 
be  subjected  to  the  expense,  trouble,  and  anxiety  of  a  public  defence 
and  exculpation,  and  that,  not  with  a  view  to  any  legal  and  bene- 
ficial consequence  either  to  the  public  or  to  himself ;  for,  if  he  were 
to  be  convicted,  he  could  not  upon  that  conviction  be  punished,  neith- 
er would  an  acquittal  afterwards  be  available  to  him,  against  a  charge 
duly  made  before  a  competent  tribunal. 

But  if  unlimited  license  to  publish  whatever  w.is  contumelious  and 
defamatory,  so  as  it  were  true,  would  be  attended  with  mischief  to 
individuals  and  public  disorder,  what,  on  the  other  hand,  would  be 
the  effect  of  a  total  prohibition  to  communicate  what  was  defamatory, 
whether  true  or  false  ?  It  can  scarcely  be  doubted,  that  if  it  were 
necessary  to  adopt  either  the  one  or  the  other  of  these  extremes,  the 
former  would  be  preferable.  ♦  The  resulting  evil  would  be  of  a  more 
limited  extent ;  it  would  leave  individuals  exposed  to  insult,  and  so- 
ciety to  frequent  breaches  of  the  peace  ;  these,  however,  are  conse- 
quences which  cannot  fairly  be  weighed  against  the  mischiefs  which 
would  arise  from  weakening,  if  not  destroying,  one  of  the  greatest 
moral  securities  by  which  society  are   protected,- — the  influence  of 

public  opinion. 
[  ^cxxvi  ]        *But  if  the  adoption  of  either  of  these  extremes  would 
be  prejudicial,  limits  must  be  sought  for,  which,  though 
they  do  not  entirely  exclude  either  of  the  opposite   and  conflicting 
mischiefs,  reduce  the  aggregate  amount. 

One  of  the  most  prominent  of  the  distinctions  devised  for  this  pur- 
pose, is  that  which  is  made  between  mere  oral  communications  and 
such  as  are  written. 

Tiiough  the  distinction  between  oral  and  written  calumny  partake 
of  an  artificial  and  arbitary  character  ;  yet  is  it  valuable,  because  it 
is  plain  and  intelligible,  and  for  this  reason  has  frequently  been  adop- 
ted, for  the  purpose  of  defining  the  limits  of  criminal  liability. 


PRELIMINARY  DISCOURSE.  cxxvi 

The  restraining  the  criminal  oflfence  to  -written  defamation  is  a  pro- 
vision which,  whilst  it  leaves  the  ordinary  communications  incident 
to  the  daily  business  of  life  unfettered,  at  the  same  time  guards 
against  the  mischiefs  which  would  result  from  unlimited  license,  by 
subjecting  to  punishment  all  such  as  are  guilty  of  the  more  deliberate, 
studied,  and  therefore,  more  malicious  attacks  upon  character  the 
more  dangerous  and  injurious,  as  being  more  permanent  in  their  na- 
ture, and  more  capable  of  a  wide  and  extensive  circulation.  This, 
therefore,  is  a  mode  of  restraint,  which,  whilst  it  leaves  open  consid- 
erable channels  for  communications  affecting  character,  yet  visits  all 
those  attacks  upon  reputation  to  which  the  foregoing  remarks  on  the 
necessity  for  penal  restraint  more  particularly  apply.  To  make  mere 
oral  communications  penal,  whenever  they  reflected  on  the  charac- 
ters of  individuals,  would  be  a  heavy  restraint  on  the  ordinary  inter- 
course of  mankind,  and  would  necessarily  and  unavoidably  occasion 
much  and  vexatious  litigation  ;  on  the  other  hand,  the 
making  written  and  defamatory  *charges  penal,  without  [  *cxxvii  ] 
regard  to  their  truth  or  falsity,  diminishes  far  less  than 
might  at  first  sight  be  expected,  from  the  great  securities  for  the  dis- 
charge of  legal  as  well  as  moral  obligations,  the  love  of  reputation, 
and  the  fear  of  public  censure  and  disgrace. 

But,  in  the  next  place,  any  evil  consequence  which  might  other- 
wise result  from  subjecting  written  defamation,  without  regard  to  its 
truth  or  falsity,  to  penal  censures,  is  best  corrected  by  exempting 
largely  from  penal  liability  in  all  cases  where  the  party  acted  with  a 
fair  and  bona  fide  intention,  with  a  view  to  a  recognized  legal  object ; 
and  this,  without  regard  to  the  truth  or  falsity  of  the  communication 
in  fact ;  for,  in  numerous  instances,  where  the  party  acts  honestly  in 
pursuit  of  a  legitimate  object,  it  is  far  more  consonant  with  the  prin- 
ciples of  natural  justice  and  sound  policy  to  make  his  criminality  de- 
pend on  his  motive,  rather  than  on  the  result  of  an  investigation  as 
to  the  truth  of  the  matter  published.  One  man  may  violate  the  prin- 
ciples of  honour  and  justice,  and  the  dictates  of  his  own  conscience, 
though  he  publish  that  only  which  is  strictly  true  ;  whilst  another 
may  act  under  the  influence  of  strong  moral  feeling,  in  publishing 
what  he  believes  to  be  true,  but  which  turns  out  eventually  to  be  false. 


cxxvii  PRELIMINARY  DISCOURSE. 

If  the  confidential  depositary  of  a  secret  were  to  betray  his  friend, 
from  a  motive  of  malice  and  revenge,  he  would  undoubtedly  stand  in 
the  first  predicament ;  were  a  man,  under  a  bona  fide  belief  that 
another  had  committed  a  fraud  to  warn  a  friend,  in  confidence, 
against  trusting  that  other,  stating  his  reason,  it  would,  provided  he 
acted  with  reasonable  caution,  be  contrary  to  natural  justice  and  the 

ordinary  principles  of  criminal  jurisprudence,  that  he 
[*cxxviii]  should  be  *dcalt  with  as  a  criminal,  merely  because  he 

happened  to  be  mistaken.  The  consideration,  however,  of 
the  circumstances,  which  ought,  when  united  with  an  honest  intention 
to  protect  the  party  against  criminal  censures,  belongs  to  another 
place  ;  it  is  noticed  here,  merely  for  the  purpose  of  showing  that  the 
punishment  of  written  defamation,  notwithstanding  its  truth,  is  ca- 
pable of  such  modifications  as  may,  to  a  great  extent,  secure  the 
public  from  any  injury  which  could  arise  from  impeding  those  or- 
dinary communications  aftecting  reputation,  which  are  of  such  great 
importance  to  society. 

Another  material  consideration  connected  with  the  present  sub- 
ject, is,  whether  the  truth  of  the  defamatory  imputation  should  not 
be  allowed  to  be  shown  in  mitigation  of  punishment,  although  una- 
vailable as  a  complete  defence,  inasmuch  as  it  is  offensive  to  men's 
sense  of  natural  justice,  that  one  who  published  that  only  which  was 
true,  should  undergo  the  same  measure  of  punishment  as  if  he  had 
in  addition  basely  invented  the  slander.  If,  however,  the  party  re- 
flected on  were  not  the  prosecutor,  it  would  be  hard  upon  him  to 
make  his  conduct  the  subject  of  pubUc  inquiry,  where  he  had  no 
means  of  defending  himself  by  becoming  a  party  to  the  inquiry ; 
and  even  supposing  that  he  were  the  prosecutor,  and  had  an  oppor- 
tunity of  meeting  the  charge,  it  would  be  highly  inconvenient  (c?), 
that  the  guilt  or  innocence  of  the  prosecutor,  should  thus  be  brought 
into  question  in  such  a  collateral  investigation,  the  more  especially 

where  he  was  charged  with  having  committed  an  offence 
[  *cxxix  ]    of  which  the  ordinary  criminal  tribunals  have  *cognizance. 

It  remains,  however,  to  be  emphatically  observed,  that  if 
the  defendant,  in  such  a  case,  is  not  to  be  admitted  to  show  that 

((/)  Supra,  p.  cxxii. 


PRELIMINARY  DISCOURSE.  cxxix 

wliat  he  published  was  true,  it  follows,  as  a  strict  and  necessary  con- 
sequence, that  no  greater  punishment  ought  to  be  inflicted  upon  him, 
than  would  have  been,  had  he  been  permitted  to  prove  and  had  ac- 
tually proved  that  the  fact  was  true  ;  for  the  truth  is  in  principle 
excluded,  because  it  is  merely  collateral  and  immaterial  to  the  na- 
ture and  extent  of  the  offence  :  and  if  immaterial,  no  greater  pun- 
ishment ought  to  follow,  than  if  the  fact  were  true  ;  it  would  obvi- 
ously be  unjust,  first,  to  exclude  a  party  from  proof  that  what  he 
published  was  true,  and  then  to  punish  him  with  a  greater  degree  of 
severity,  as  for  publishing  what  was  false,  or  at  least  not  established 
as  true. 

2nd.  Next,  as  to  the  act  of  the  party,  and  the  means  of  com' 
munication  used. 

In  the  civil  proceeding  to  recover  a  compensation  in  damages,  a 
publication  of  the  slander  is  absolutely  essential ;  without  it,  no 
damage  can  have  been  sustained  in  fact,  and  none  can  in  principle 
be  presumed.  In  respect  of  criminal  animadversion,  the  case  is 
different ;  it  is  a  mere  question  of  policy  and  expediency,  whether 
the  law  shall  interfere  to  prohibit,  and  in  consequence  to  punish  any 
act  or  dealing,  in  respect  of  a  libel,  anterior  to  an  actual  publica- 
tion. 

The  first  step  is  to  conceive  the  mischievous  and  illegal  matter 
of  the  libel,  then  to  commit  it  to  writing  or  print ;  it  is  by  the  act 
of  publication  that  the  offender,  abandoning  his  locus  pcenitenticef 
absolutely  and  conclusively  inflicts  the  injury  on  society. 

*That  the  actual  publication  of  that  which  is  fraught     [  *cxxx  ] 
with  danger  and  mischief  to  society,  is  to  be  regarded 
as  penal,  seems  to  be  as  clear  a  proposition,  as  it  is,  on  the  other 
hand,  that  the  mere  abstract  intention  to  do  mischief,    unaccom- 
panied by  any  act,  ought  not  to  be  subjected  to  penal  visitation  (e)  ; 

(e)  A  man's  secret  intentions,  and  even  actions,  are  rather  tlie  subject  of  moral 
than  of  legal  restraint,  and  they  do  not  properly  become  the  subject  of  penal  visi- 
tation, until  the  necessity  for  coercion  has  been  manifested  by  some  overt  act,  tend- 
ing to  the  prejudice  of  society. 

Marsyas  dreamt  that  he  had  cut  Dyonysius's  throat ;  Dyonysius  put  him  to  death, 
pretending  that  he  would  never  have  dreamt  of  such  a  thing  by  night,  if  he  had  not 
thought  of  it  by  day.  This  (says  M.  Montesquieu,  b.  11,  c.  12.)  was  a  most  tyran- 
nical action,  for  though  it  had  been   the  subject  of  his  thoughts,  yet  he  had   made 

Vol.  I.  19 


cxxx 


PRELIMINARY  DISCOURSE. 


whether  the  intermediate  acts  of  writing  or  printing  a  libel,  with 
intent  to  publish,  ought  also  be  deemed  criminal,  is  at  least  a  fair 
question  of  legal  policy.  That  such  an  act  might  properly  be 
made  penal,  provided  such  a  law  "were,  on  the  whole,  beneficial, 
seems  to  be  manifest,  for  acts  of  forgery  are  usually  considered  to 
be  consummated  crimes  of  great  magnitude,  although  they  be  done 
in  secret,  and  without  subsequent  voluntary  publication.  It  is, 
however,  to  be  apprehended,  that  to  punish  with  strictness  and 
effect,  the  mere  writing  or  printing  of  a  libel,  would  be  attended 
with  more  of  mischief  than  of  benefit  to  the  community.  Unless 
means  were  devised  for  subjecting  men's  private  closets  to  rigorous 
examination,  founded  on  mere  suspicion,  such  a  law  would  be  nu- 
gatory ;  it  would  rarely  indeed  be  known  that  a  man  had 
[  *cxxxi  ]  composed  and  written  a  libel,  unless  he  had  himself  *in 
some  way  published  or  divulged  it,  and  where  that  was 
the  case,  the  law  would  cease  to  be  necessary.  On  the  other  hand, 
the  hardship  and  insecurity  which  would  result  to  society  from  sub- 
jecting their  private  muniments  and  writings  to  examination  by 
police  officers,  would  be  a  public  inconvenience  of  the  most  intoler- 
able description.  And  though  no  such  power  should  be  given  to 
search  on  mere  suspicion,  yet  would  it  frequently  happen  that  the 
inferior  ministers  of  the  law  would  be  ready,  on  many  occasions, 
to  run  the  risk  of  consequences  in  the  expectation  of  detecting 
cause  for  accusation  against  suspected  or  obnoxious  persons. 

In  the  next  place,  do  any  limitiations  arise  from  the  means  of 
communications  used  ?  If  penal  restraint  were  to  be  made  strictly 
commensurate  with  the  evil  which  calls  for  restraint,  there  would  be 
no  more  reason  for  making  penal  responsibility  than  for  making  civil 
liability,  to  depend  on  the  mere  means  of  communication.  For,  it 
is  plain,  that  the  mode  of  communication  cannot  alter  the  vicious 
and  mischievous  nature  of  the  matter  communicated,  though  it  may 
considerably  affect  the  extent  and  duration  of  the  mischief. 

If  a  written  incitement  to  an  evil  act  tend  to  produce  mischief  to 
the  public,  so  also  must  an  oral  one  ;  and,  therefore,  if  the  former 

no  attempt  towards  it.    The  laws  do  not  take  upoa  them  to  punish  any  other  tha« 
overt  acts. 


PRELIMINARY  DISCOURSE.  cxxx 

is  on  that  account  to  be  deemed  criminal,  so  ought  the  latter.  The 
two  modes  may  indeed  differ  as  to  the  extent  of  the  mischief  likely 
to  be  occasioned  ;  the  former  is  capable  of  being  widely  circulated, 
and  for  a  length  of  time ;  the  effect  of  the  latter  is  likely  to  be  more 
local  and  more  transitory  ;  this,  however,  is  but  casual  and  contin- 
gent ;  an  inflammatory  and  seditious  speech,  addressed 
to  a  multitude  on  an  *occasion  of  great  excitement,  may  [  *cxxxii  ] 
produce  effects  far  more  mischievous  and  lasting  than  if 
the  same  speech  were  written  or  printed,  and  communicated  to  but 
a  few.  Contumelious  and  insulting  expressions  applied  to  a  party 
in  his  presence  and  before  a  large  assembly  may  be  infinitely  more 
injurious  and  provocative  than  if  the  same  had  been  written  and 
sent  to  him.  At  all  events  the  difference  of  mode  cannot,  in  point  of 
principle,  alter  the  criminal  quality  of  the  act,  but  merely  affords 
room  for  a  distinction  in  admeasuring  the  punishment. 

When,  however,  considerations  of  extrinsic  policy  are  taken  into 
the  account,  and  allowed  to  operate  in  restraint  of  criminal  liability, 
it  is  obvious  that  a  distinction,  founded  on  the  mode  of  publication, 
including,  within  its  scope,  such  modes  as  by  their  capability  and 
facility  of  diffusion,  and  permanency,  must  ordinarily  be  considered 
as  the  more  dangerous,  as  by  printing  or  writing,  and  excluding 
such  as  are  merely  oral,  may  well  consist  with  general  conven- 
ience. 

Some  observations  have  already  been  made,  with  a  view  to  show 
that,  as  far  as  the  civil  remedy  is  concerned,  there  is  no  sound  dis- 
tinction between  oral  and  written  slander  ;  in  reference,  however,  to 
penal  censures,  there  are  several  reasons  for  confining  the  penalties 
in  respect  of  personal  defamation  to  written  pubUcations.  In  the 
first  place,  to  extend  the  offence  to  oral  defamation  generally,  would 
be  inconvenient,  because  it  would  give  rise  to  many  vexatious  pros- 
ecutions, and  would  create  far  too  large  a  restraint  on  communications 
involving  character.  In  the  next  place,  the  proof  of  an  offence  com- 
mitted by  the  writing  and  publishing  of  illegal  matter,  is 
far  more  definite  and  satisfactory  *than  where  the  of-  [  *cxxxiii  ] 
fence  is  merely  oral,  when  so  much  depends  on  tone  and 
manner,  the  situation  of  the  speaker,  the  circumstances  under  which 
he  spoke,  the  understanding  and  memory  of  the  hearers.     On  this 


CXXXlll 


PRELIMINARY  DISCOURSE. 


account  it  is  that  the  municipal  la-ws  of  different  countries  so  fre- 
quently found  a  distinction  between  what  is  written  and  that  which 
is  merely  spoken  (/). 

This  relaxation,  however,  founded,  as  it  is,  on  a  principle  of  con- 
venience, cannot  properly  be  extended  beyond  those  communications 
which  usually  occur  in  the  ordinary  intercourse  of  society,  in  which 
the  character  and  reputation  of  particular  members  of  that  society 
must  necessarily  and  frequently  be  involved.  It  would  be  highly 
inconvenient  that  men's  tongues  should  be  fettered  on  such  occasions, 
by  the  perpetual  apprehension  of  criminal  prosecutions.  It  is  plain, 
that  no  direct  solicitation  to  violate  the  law  can  by  possibility  fall 
within  any  principle  of  expediency,  so  as  to  derive  protection  from 
it. 

The  law  of  England  has  not  only  made  a  distinction  in  respect  of 
the  means  of  communication,  but  has  also  adopted  the  word  libel  as 
a  particular  and  technical  term,  by  which  communications  of  an  im- 
moral or  illegal  tendency,  made  by  means  of  writings,  pictures,  or 

signs,  are  distinguished  from  those  which  are   merely 
[  *cxxxiv  ]      *This  distinction  and  the  grounds  of  it,  will  more  proper 

oral  (g) 

ly  be  adverted  to  hereafter,  when  the  provisions  of  the 
law  of  England  on  the  subject  are  discussed. 

Srdly.  It  is  next  to  be  considered  how  far  the  motive  of  the 
party,  and  the  occasion  of  the  publication  are  material,  either  to 
constitute  or  repel  the  conclusion  of  guilt,  where  a  publication  has 
been  effected  of  noxious  and  illegal  tendency. 

It  seems,  on  the  one  hand,  that  a  mere  wicked  and  mischievous 
intention,  unless  it  be  conjoined  with  some  publication  of  noxious 
and  illegal  matter,  cannot  constitute  an  offence  against  mere  muni- 

(/ )  See  Montesquieu's  Spirit  of  Laws,  b.  12,  c.  12.  Hence  it  is,  that,  according  to 
the  law  of  England,  mere  words  spoken  do  not  constitute  an  overt  act  of  treason, 
infra,  vol.  2,  p.  167. 

(g)  4  Comm.  150.  This  definition,  though  perhaps  sufficiently  proximate  for 
all  practical  and  useful  purposes,  does  not  precisely  agree  with  the  ordinary  sense 
and  meaning  of  the  word,  for  it  would  include  an  express  written  solicitation  to  com- 
mit a  crime,  which  does  not,  perhaps,  in  strictness,  fall  within  the  ordinary  notion  of 
a  libel ;  yet.  inasmuch  as  the  very  essence  of  a  libel  consists  in  its  tendency  to  pro- 
duce some  public  or  private  mischief,  such  a  solicitation  conveyed  in  writing,  seems 
properly  to  fall  within  the  meaning  of  the  term. 


PRELIMINARY  DISCOURSE.  cxxxiv 

eipal  laws  ;  in  other  words,  that  mere  abstract  intention  is  not  pun- 
ishable by  a  human  tribunal.  If  a  man,  intending  to  publish  a  most 
atrocious  libel,  were  by  mistake  to  deliver  the  gospel  instead  of  the 
book  in  which  the  libel  was  contained,  though  in  moral  point  of  view, 
his  guilt  would  be  just  the  same  as  if  he  had  published  the  libel,  yet 
he  would  have  committed  no  crime  against  the  law,  unless  that  law 
took  cognizance  of  mere  abstract  intention,  unaccompanied  by  any 
definite  criminal  act.  On  the  other  hand,  it  appears  to  be  equally 
manifest,  that  Avhere  any  act  is  by  the  law  defined  to  be  illegal  and 
criminal,  every  one  is  punishable  who  voluntarily  does 
the  prohibited  act,  without  some  legal  justification  or  *ex-  [  *cxxxv  ] 
cusc,  furnished  by  the  occasion  and  circumstances,  and 
without  regard  to  his  real  motive  and  intention.  To  hold  that  a 
man  should  be  absolved  from  penal  responsibility,  merely  because 
his  motives  were  kind,  benevolent,  and  philanthropic,  would  be  to  set 
the  private  opinion  and  conscience  of  every  one  above  the  law  to  the 
utter  subversion  of  the  law. 

For  the  same  reason,  it  is  obvious,  that  mere  abstract  intention 
and  motive,  where  the  act  is  voluntary,  cannot,  without  reference  to 
the  occasion  and  circumstances  of  the  communication,  constitute 
any  justification  or  excuse  which  the  law  can  safely  recognize. 

The  intention  of  the  publisher,  in  reference  to  criminal,  as  well 
as  civil  liabilit}'-,  is  capable  of  a  threefold  distinction ;  he  may,  in 
the  first  place,  be  actuated  by  a  malicious  and  malignant  intention 
to  effect  the  particular  mischief  to  which  the  means  he  uses  tend  ; 
or,  on  the  other  hand,  his  object  may  be  benevolent  and  laudable  ;  or, 
lastly,  he  may  be  indifferent  as  to  consequences,  and  act  purely  from 
some  collateral  motive.  But  mere  intention  in  the  abstract,  and 
without  reference  to  circumstances  which  supply  a  justification,  rec- 
ognized by  the  law,  cannot  supply  a  test  of  exemption  from  criminal, 
any  more  than  from  civil  liability. 

A  man  must,  in  respect  of  criminal,  as  well  as  remedial  conse- 
quences, be  presumed  to  contemplate  and  intend  the  natural  con- 
sequences of  his  own  act ;  if,  therefore,  the  act  be  calculated  for 
the  production  of  evil  consequences,  he  must  be  taken  to  have  in- 
tended them ;  or  it  may,  with  greater  simplicity,  be  stated,  that  the 
wilful  doing  of  any  prohibited  act,  tending  to  public  injury,  ia,  in 


cxxxvi  PRELIMINARY  DISCOURSE. 

the  absence  of  any  lawful  excuse,  in  itself  criminal, 
[  *cxxxvi]  *legal  malice  being  in  all  such  cases,  a  mere  formal  infer- 
ence of  law. 
And  it  seems  to  be  clear  in  principle,  that  mere  innocencj  of 
intention,  so  long  as  the  act  is  voluntary  and  designed,  in  the  ab- 
sence of  circumstances  which  amount  to  a  legal  excuse,  cannot  ex- 
empt the  party  even  from  criminal  liability.  Every  man  must  be 
taken  to  know  the  law ;  to  hold  the  contrary,  would  be  to  confer  a 
premium  on  ignorance,  which  would  afford  a  defence  for  every  pos- 
sible transgression  of  the  law  (Z^. 

4thly.  In  the  next  place,  in  reference  to  the  criminal,  as  well  as 
the  civil  branch  of  the  subject,  the  occasion  and  circumstances  of 
the  communication  may  furnish  either  an  absolute  and  peremptory 
bar  to  criminal  responsibility,  or  a  qualified  one  dependent  on  the 
particular  motive  and  intention  with  which  the  party  was  actuated 
in  making  such  communication. 

In  the  first  place,  it  is  in  some  instances  a  matter  of  public  policy, 
arising  from  the  occasion  of  making  the  communication,  wholly  to 
exempt  the  party  from  all  penal  consequences,  at  least  from  the 
ordinary  penalties  annexed  to  defamatory  communications.  The 
same  principle  of  expediency,  which  operates  to  the  exemption  of  a 
legislator,  judge,  or  witness,  from  actions  for  slander,  applies  to  the 
question  of  exemption  from  penal  liability. 

Thus,  if  in  the  course  of  a  legal  investigation,  a  wit- 
[  *cxxxvii  ]  ness  should  make  a  deposition  greatly  injurious  to  *the 
character  of  another,  and  which  would,  if  published  un- 
der other  circumstances,  be  criminal,  yet  it  would  obviously  be  im- 
politic and  inconvenient  to  permit  a  penal  prosecution  to  be  main- 
tained against  the  witness,  in  respect  of  his  deposition,  founded  on 
a  mere  suggestion,  that  his  intention  was  malicious ;  for  it  would 
necessarily  be  a  great  hindrance  to  such  inquiries,  if  the  motives  of 
witnesses  could  be  afterwards  brought  in  question.  Though  his 
motive  in  becoming  a  witness  might  be  most  mahcious  and  immoral, 

(/i)  Ignorance  of  the  law  excuses  no  man  ;  not  that  all  men  know  the  law,  but 
because  it  is  an  excuse  every  man  will  make,  and  no  man  can  tell  how  to  confute 
him. — Selden. 


PRELIMINARY  DISCOURSE.  cxxxvii 

his  testamony  might  be  true  and  essential  to  the  purposes  of  justice. 
Corruption  on  the  part  of  a  judge,  or  perjury  on  that  of  a  witness, 
must  necessarily  be  crimes  of  great  magnitude  under  every  system 
of  laws ;  these,  however,  are  very  distinct  and  different  offences,  and 
are  not  connected  with  the  present  subject. 

In  the  next  place,  the  occasion  and  circumstances  of  the  com- 
munication may  supply  a  qualified  defence,  dependant  on  the  act- 
ual intention  to  injure.  The  constituting  a  large  and  extensive 
barrier,  for  the  legal  protection  and  immunity  of  those  who  act 
bona  fide  and  sincerely,  according  to  the  occasion  and  circumstan- 
ces in  which  they  are  placed,  is  not  only  just,  in  a  moral  point  of 
view,  and  advisable  as  a  measure  of  policy,  but  is  absolutely  neces- 
sary for  the  purposes  of  civil  society.  Were  the  mere  probable 
effect  and  tendency  of  a  publication  to  be  the  criterion  of  guilt, 
without  reference  to  the  real  motive  of  the  author  and  the  occasion 
and  circumstances  under  which  he  acted,  the  rule  would  be  far  too 
extensive  for  the  convenience  of  mankind,  and  the  evil  resulting 
from  the  prohibition  would  greatly  out-weigh  the  opposite  advan- 
tages to  be  derived  from  it. 

*It  is  indeed  very  possible  that  a  party,  actuated  by  [  *cxxxviii  ] 
the  very  best  intentions,  may  propagate  erroneous  no- 
tions, but  so  long  as  he  urges  those  opinions  bond  fide,  believing 
them  to  be  just,  and  intending  to  do  good,  his  errors  are  not  Ukely  to 
prevail  against  the  better  sense  and  judgment  of  mankind  to  a  very 
serious  and  prejudicial  extent ;  and  the  contingent  and  casual  pub. 
lication  of  erroneous  opinions  cannot  be  placed  in  competition  with 
the  splended  advantages  which  flow  from  permitting  full  and  fair 
discussion  on  every  subject  of  interest  to  mankind,  as  connected 
with  religion,  politics,  philosophy,  and  morals. 

The  security  of  the  public,  in  this  respect,  is  amply  provided 
for  by  distinguishing  between  that  which  is  published,  with  a  sin. 
cere  and  honest,  though  unsuccessful  intention  to  do  right,  and 
malicious  attempts  to  injure  society  in  general,  or  individuals  in 
particular,  by  profane,  blasphemous,  seditious,  immodest,  or  de- 
famatory communications. 

This  general  principle  embraces  not  only  all  communications 
made  on  subjects  of  public  interest,  but  also  those  which  affect  the 


cxxxviii  PRELIMINARY  DISCOURSE. 

characters  of  private  persons,  provided  they  be  made  in  the  dis- 
charge of  any  legal,  or  even  moral  duty,  and  in  a  manner  suited 
to  the  occasion.  Here  the  boundaries  of  criminal  as  well  as  civil 
liability  seems  to  be  identical. 

In  all  such  cases,  though  the  tendency  may  be  of  an  injurious 
nature,  it  is  a  question  whether  the  party  was  really  actuated  by 
a  good  and  honest  intention,  as  suggested  by  the  occasion  and  cir- 
cumstances under  which  he  published,  or  whether  he  made  use  of 
that  occasion  as  a  cloak  for  carrying  an  injurious  and 
[  *cxxxix  ]  malicious  *design  into  effect.  The  real  intention  of  the 
party  is  the  proper  test  of  criminality,  and  legal  is  com- 
mensurate with  moral  delinquency. 

Here  a  question  of  considerable  importance  occurs  :  though  the 
truth  of  a  slanderous  charge  may  be  no  justification,  yet  in  those  in- 
stances where  malice  in  fact  is  the  test  of  criminality,  where  the 
question  is,  whether  the  pubhsher  acted  sincerely,  or  merely  malic- 
iously, and  not  with  reference  to  the  occasion,  ought  it  not  to  be  ad- 
mitted, at  all  events,  as  collateral  evidence  to  shew  the  true  state  of 
his  mind?  Thus,  suppose  that  A.  writes  a  letter  to  B.,  stating  the 
latter  to  have  been  guilty  of  disgraceful  conduct,  and  that  the  de- 
fence is,  that  the  letter  was  written  for  the  purpose  of  admonition 
and  advice,  not  with  a  view  to  injure  or  offend  B.,  but  in  order  to 
amend  and  reclaim  him.  In  such  a  case,  the  question  would  be,  as 
to  the  sincerity  of  A. ;  if  he  were  sincere,  it  would  be  contrary  to 
sound  pohcy  and  natural  justice  to  punish  him  as  a  criminal ;  if  he 
assumed  the  mask  of  friendship,  in  order  that  he  might  wound  Avith 
impunity,  he  v>'ould  deserve,  for  his  hypocrisy,  a  higher  degree  of 
punishment.  Now,  as  the  issue  would,  in  such  a  case,  be  on  the 
mere  fact  of  sincerity,  it  is  manifest,  that  if  the  prosecutor  could 
show  that  the  imputation  was  false  in  fact,  and  that  A.  Tcnew  it  to  be 
false,  this  would  at  once  be  decisive  to  show  that  he  did  not  act  horn 
fide;  and  although,  on  the  other  hand,  proof  that  the  facts  were  true, 
or  that  A.  believed  them  to  be  true  would  not  be  absolutely  decisive 
as  to  his  sincerity  of  intention,  yet  still  there  can  be  no  doubt  as  to 

the  materiahty  of  such  evidence. 
[  *cxl  ]         *In  such  cases,  one  of  three  courses  must  necessarily 
be  adopted,  either,  first,  to  assume  the  falsitif  of  the  im- 


PRELIMINARY  DISCOURSE.  cxl 

putation  ;  or,  secondly,  to  assume  its  truth^  (or  at  least  not  to  assume 
its  falsity ;)  or,  thirdly,  to  admit  evidence  of  the  fact.     The  first  of 
these  must  at  once  be  rejected,  so  inconsistent  would  it  be  with  rea- 
son and  natural  justice,  to  subject  any  one  to  punishment  on  the  as- 
sumption  of  a  fact,  without  permitting  him  to  disprove  it.     Each  of 
the  other  alternatives  would  be  attended  with  its  peculiar  difficulties  : 
it  would  be  highly  inconvenient;  to  try  a  collateral  charge  against  the 
prosecutor,  or  it  may  be  a  stranger,  far  more  heinous,  than  the  prin- 
cipal one  against  the  defendant.     On  the  other  hand,  were  the  truth 
to  be  presumed,  or  at  least  the  falsity  not  assumed,  a  mahcious  libel- 
ler might  be  acquitted,  of  whose  malice  the  most  decisive  proof  might 
have  been  adduced.     The  latter,  however,  would  probably  be  the 
less  inconvenient  consequence  of  the  two,  for  many  of  the  most  weigh- 
ty objections  against  admitting  the  truth  of  a  personal  and  defama- 
tory charge  to  afford  ground  of  justification  or  excuse,  would  also  ap- 
ply to  the  exclusion  of  proof  of  the  fact  as  collateral  evidence.     It  is 
also  to  be  recollected,  that,  after  all,  the  truth  or  falsity  of  the  charge 
would  not  be  the  real  question,  and  would  bo  material,  so  far  only 
as  it  tended  to  show  the  real  intention  of  the  party  who  made  it ; 
and,  therefore,  even  admitting  the  fact  to  be  true,  still  the  prosecutor 
would  be  at  liberty  to  show  that  the  defendant  did  not  act  on  any 
behef  of  the  truth,  or  even  if  he  did,  that  he  was  actuated  by  a  ma- 
licious intention  to  injure  or  offend,  and  not  with  a  fair  and  honest 
intention  to  effect  a  beneficial  object ;  and  on  the  other 
hand,  the  defendant  *would  be  at  liberty,  even  though  he     [  *cxli  ] 
admitted   the  imputation  to  be  false,  to  show  that  he  be- 
lieved it  to  be  true,  and  that  he  acted  on  that  supposition  with  a 
lona  fide  vaiQXiiioxx  (i)' 

(i)  The  law  of  England,  it  will  be  seen,  on  the  trial  of  an  information  or  indict- 
ment for  publishing  a  defamatory  libel  reflecting  on  an  individual,  excludes  evidence 
■   of  the  truth  of  the  contents,  though  it  be  ofTered  merely  with  a  view  to  prove  or  dis- 
prove the  malice  of  the  publisher. 

It  has  been  strongly  urged,  (see  the  Edinburgh  Review,  for  the  year  1816,)  that 
in  thus  rejecting  evidence  of  the  truth,  injustice  is  done  ;  and  it  must  be  ad- 
mitted at  once  that  to  exclude  such  proof,  and,  at  the  same  time,  to  raise 
any  presumption  that  the  charge  was  false,  because  it  had  not  been  proved  to 
be  true,  would  be  productive  of  gross  injustice  to  a  defendant  in  such  a  prosecu- 
tion.   On  the  other  hand,  althoagh  to  exclude  proof  that  the  charge  was  false,  and. 

Vol.  I.  20 


cxlii  PRELIMINARY  DISCOURSE. 

[  *cxlii  ]         *The  degree  of  punishment  to  be  inflicted,  in  respect 
[  *cxliii  ]    of  a  noxious  and  illegal  communication  must  'necessarily 

which  is  still  more  material,  that  the  defendant  knew  it  to  be  false,  would  be  to  ex- 
clude the  most  cogent  evidence  of  malice,  the  consequence  would  be  less  repugnant 
to  men's  sense  of  natural  justice,  inasmuch  as  it  is  preferable  to  err  on  the  side  of 
mercy,  especially  as  the  defect  might  frequently  be  supplied  by  other  evidence,  so 
seldom  does  it  happen  that  the  same  malicious  feeling,  which  is  strong  enough  to 
cause  a  party  to  invent  a  deliberate  fiction,  does  not  also  betray  itself  by  collateral 
indications.  The  effect  of  such  an  exclusion  is  also  diminished  by  the  consideration 
that  the  objection  is  applicable  only  to  that  intermediate,  though  large  class  of  cases, 
where  actual  malice  is  the  proper  test  of  guilt ;  and  that  against  the  inconvenience 
which  no  doubt  must  result  from  excluding  such  evidence  in  this  class  of  cases,  are 
to  be  set  off  those  opposite  inconveniences,  already  adverted  to,  which  would  arise 
from  the  admitting  such  evidence  :  the  necessity  for  inquiring  into  the  most  serious 
and  complicated  criminal  charges  in  a  collateral  proceeding  of  far  less  importance; 
the  constituting  a  tribunal  for  indirectly  trying  moral  offences,  of  which  the  law  it- 
self takes  no  cognizance ;  the  danger  to  be  apprehended  to  the  public  peace  from 
permitting  insults  to  be  offered  where  the  truth  can  be  proved,  without  restraint, 
and  thus  driving  men  to  avenge  such  insults  by  violence  ;  and  last,  but  not  least,  the 
hardship  which  would  be  occasioned  to  individuals  in  permitting  their  conduct  and 
reputation  to  be  put  in  hazard,  it  may  be  coUusively,  by  proceedings  to  which  they 
are  not  parties,  It  has  been  urged  that  the  same  kind  of  hardship  may  arise  on  a 
justification  in  a  civil  action  ;  but  there,  from  the  nature  of  the  case,  the  danger  is 
much  limited  by  the  consideration  that  the  plaintiff  cannot  collusivcly  implicate  the 
character  of  a  third  person  without  injuring  his  own.  If  A.  were  to  publish  that  B. 
had  been  guilty  of  adultery  with  the  wife  of  C,  and  on  an  action  for  damages 
brought  by  C.  and  his  wife,  A.  were  to  justify,  alleging  that  the  fact  was  true,  the 
character  of  B.  would  no  doubt  be  implicated  in  the  result,  though  he  had  no  means 
of  becoming  a  party  to  the  proceeding  ;  but  in  such  a  case  there  would  belittle  prob- 
ability of  collusion  between  A.  and  the  husband  for  the  purpose  of  defaming  B., 
when  it  is  considered  that  the  object  could  not  be  accomplished  except  by  means  of 
a  verdict  which  recorded  the  dishonour  of  C.  and  the  infamy  of  his  wife.  In  the 
civil  proceeding,  therefore,  little  of  abuse  or  inconvenience  can  arise  from  an  impli- 
cation of  a  third  person  in  a  justification  of  this  nature,  whilst  in  a  prosecution  to  be 
instituted  by  a  stranger,  no  such  restraint  on  the  abuse  would  operate. 

It  is  true  that,  as  the  lav/  now  stands,  the  defamed  or  injured  party  is  usually  the 
prosecutor,  but  it  by  no  means  follows  that  prosecutions  would  be  so  limited  if  such 
a  justification  were  to  be  permitted,  and  a  recent  instance  (R.  v.  Burdclt,  4  B.  and 
A.  314.)  is  sufiicient  to  show  that  characters  of  third  persons  may  be  deeply  impli- 
cated in  prosecutions  to  which  they  are  strangers. 

It  has  further  been  urged  that,  in  the  criminal  proceeding,  the  real  object  of  legal 
interference  is  the  protection  of  the  defamed  party,  and  that  the  injury  to  the  public 
is  but  a  legal  fiction.  Now  that  one  main  ground  of  penal  infliction  in  such  cases 
recognized  by  the  law  of  England,  is  the  protection  of  indivduals,  may  readily  be 
admitted,  but  this  is  not  the  only  one  ;  another  and  equally  important  object,  as  may 
be  collected  from  the  language  and  decisions  of  the  courts,  is  the  preservation  of  the 


PRELIMINARY  DISCOURSE.  cxliv 

depond  much  on  the  species  and  degree  of  injury  like- 
ly to  result  from  the  act.   It  is  obvious  that,  in  many  *in      [*  cxlii  ] 
stances,  it  ought  to  be  regulated  in  analogy  to  correspond-    - 

public  peace,  and  this  may  clearly  be  inferred  from  the  consideration  that  a  publica- 
tion of  a  libel  is  penal,  though  it  be  strictly  confined  to  the  party  defamed  ;  this 
would  be  unecessary  if  the  law  regarded  merely  the  injured  credit  of  the  individual, 
but  is  absolutely  necessary,  if  security  to  the  public  be  also  the  object  of  the  law. 
The  same  conclusion  is  to  be  drawn  from  the  consideration  that  the  law  punishes 
libels  on  the  dead  as  well  as  on  the  living,  out  of  the  just  apprehension  that  other- 
wise the  family  of  the  deceased  would  visit  the  insult  as  a  personal  affront  to 
themselves ;  and  one  reason,  and  that  a  forcible  one,  for  publishing  libels,  even  on  the 
subject  of  religion,  is  the  consideration  that  to  revile  a  man's  religion  cannot  but  be 
regarded  as  an  indirect  affront  to  himself.  Were  the  object  of  civil  and  criminal 
visitation  in  respect  of  personal  defamation  by  means  of  libels  identical,  it  is  evi- 
dent that  one  and  the  same  process  ought  to  serve  for  both,  and  that  in  England  as 
in  Scotland,  the  prosecutor  should  be  allowed  to  proceed  at  once  for  amends  to  the 
individual,  and  also  for  the  infliction  of  a  fine  or  imprisonment,  if  indeed  any  penal 
censure  ought  to  follow  where  the  object  is  simply  the  protection  of  the  individual, 
and  where  the  awarding  damages  would  probably  be  sufficient  for  the  purpose. 

Bui  it  is  urged  that  the  practice  of  the  Court  of  King's  Bench  in  refusing  a  crim 
inal  information  where  the  alleged  libel  is  true,  shows  that  the  protection  is  of  a  per- 
sonal nature.    It  must,  however,  be  recollected  that  in  granting  or  refusing  criminal 
informations  in  case  of  libels,  the  Court  of  King's   Bench  exercises  a  discretionary 
power,  acting  on  principles  which  are  pecuhar  to  that  proceeding,  and  that  the  practice 
in  the  instance  of  a  criminal   information  for  a  libel,  is  not  only  peculiar  to  that  pro- 
ceeding but  irreconcilable  with  the  ordinary  principles  of  jurisprudence  on  which  the 
law  of  ^England  is  founded.     The  general  rule  is,  that  the    truth  or  falsity  of  a  li- 
bel is  immaterial,  whilst  in  this  instance  it  is  made  the  first  and  essential  object  of 
preliminary  inquiry,— of  an  inquiry  conducted  in  a  mode  foreign  to  the  ordinary 
forms  of  criminal  justice,  not  by  evidence  before  a  jury,  but  by  affidavits.     Such  a 
mode  of  investigation,  at  all  times  unsatisfactory,  is  the  more  so  where  the  defendant 
though  the  alleged  libel  be  perfectly   true,  has  no  means  of  compelling  those   who 
know  the  truth  to  establish  it  by  their  affidavits  ;  and  yet,  when  the  information  has 
been  granted,  he  is  excluded  from  giving  evidence  of  the  truth,  although  the  infor- 
mation was  granted  only  on  the  assumption   that  the  statement  was  false,  a  circum- 
stance which  necessarily  tends  to  raise  an  unfavourable  prejudice  against  him  on  the 
trial.     Notwithstanding   such   considerations,  the  result  is  far  more  beneficial  than 
might  have  been  expected,  or  than  possibly  could   have  happened,  had  the  practice 
been  general.    The  truth  is,  that  although  the  Court  of  King's  Bench  is  open  to  all 
applicants  for  criminal  informations,  yet  in  cases  of  libel  it  is  seldom  resorted  to  but 
by  persons  of  rank  or  wealth.    The  proceeding  by  information  for  a  libel  is  a  kind 
of  intermediate  course  between  treating  the  insult  as  an  affair  of  honour,  and  the 
more  vulgar  and  plebeian  course  of  presenting  a  bill  of  indictment  at  the  sessions  or 
assizes.      The  libelled  party  has  an  opportunity  of  exculpating  himself  by  means  of  a 


cxliv  PRELIMINARY  DISCOURSE. 

ing  penal  provisions  contained  in  the  same  code.  When  such  an 
offence  amounts  to  the  crimen  lessee  7najestatis,  the  offender  is  of 
course  subject  to  the  penalties  of  treason.  Where  the  offence  con- 
sists in  a  soUcitation  to  commit  some  other  substantive  offence,  which 

is  in  consequence  perpetrated,  then  it  partakes  of  the 
[  *cxlv  ]     "nature  of  that  offence,  and  is,  in  effect,  but  a  means 

of  its  accomplishment.  But  where  the  criminal  object  is 
not  accomplish,  in  consequence  of  such  an  illegal  solicitation,  there 
is  room  for  a  distinction  in  favour  of  the  offender,  to  allow  him 
the  benefit  of  a  locus  pccnitentice  (Jc). 

denial  of  the  imputation  on  his  conduct  and  character  in  the  most  public  manner,  and 
under  a  solemn  sanction  ;  his  adversary  is  the  more  ready  to  make  concession  where, 
from  the  form  of  the  proceeding  his  character  for  courage  is  not  implicated,  and  where 
the  truth  of  the  fact  having  been  solemnly  denied,  an  opportunity  is  afforded  for  ex- 
planation, concession,  or  apology.  And  thus  it  happens  that  a  course  of  proceeding 
which  is  to  a  certain  extent  inconsistent  with  general  principles,  is  in  its  limited  appU- 
cation  rendered  beneficial  by  particular  considerations.  Men  cannot  be  moulded  and 
adapted  to  the  laws  :  the  laws  must  be  accommodated  to  men,  and  not  such  as  they 
ought  to  be,  but  such  as  they  are  ;  and  if  eren  a  portion  of  a  considerable  and  pow- 
erful class  of  the  community  can  be  induced  to  submit  themselves  to  the  law  instead 
of  resorting  to  violence,  this  is  an  advantage  to  society  which  it  would  be  unwise  to 
sacrifice  for  the  mere  sake  of  legal  symmetry;  and  the  practic  may  well  be  permitted 
without  establishing  any  general  rule,  even  although  it  be  irreconcilable  with  the  or- 
dinary and  general  principles  on  which  the  law  proceeds. 

(k)  Some,  it  is  well  known,  have  supposed  that  the  publication  of  a  defamatory 
Satire  was,  by  the  law  of  the  Twelve  Tables,  punishable  with  death.  Montesquieu, 
Sp.  of  Laws.  The  authority  for  this  is  a  quotation  by  St.  Augustine  (De  Civitate 
Dei,  lib.  2.  c.  9.)  from  Cicero  de  Republica,  lib.  4.  c.  10.  In  that  passage,  Scipio 
Africanus,  discoursing  of  the  licentiousness  of  the  Greek  comedies,  speaks  thus  :— 
Apud  Grascos  fuit  etiam  lege  concessum,  ut  quod  vellet  comoedia,  de  quo  vcllet  nom- 
inatim  dioeret.  Nostrae  contra  xii.  tabulte  cum  perpaucas  res  capite  sanxissent  ia 
his  banc  quoque  sanciendam  putaverunt :  Si  guts  occeniavisset  (actitavisset)  sive 
carmen  condidisset  quod  infamiam  faceret  flagitiumve  alteri.  Praeclarfe,  judiciis  enim 
magistratum  disceptationibus  legitimis  propositiam  vitam,  non  poetarum  ingeniis 
habere  debemus,  nee  probrum  audire  nisi  ea  lege  ut  respondere  liceat  et  judicio  de- 
fend ere. 

It  would  be  difficult,  however,  in  the  absence  of  stronger  and  more  direct  author- 
ity, to  accede  to  this  position  that  the  Decemviral  Code  punished  this  offence  cap- 
itally, although  certainly  the  pcena  capatis  did  not  always  mean  the  punishment  of 
death.  For,  in  the  first  place,  the  authority  is  weakened  by  the  consideration  that 
St.  Augustine  himself  does  not  profess  lo  communicate  the  exact  words  even  of 
Cicero.    Secondly,  the  immediate  and  shocking  severity  of  a  law  which  visited  the 


PEELIMINARY  DISCOURSE.  cxlvi 

*At  all  events,  the  punishment  ought  never  to  exceed    [  *xclvv  ] 
that  which  -wculd  by  law  have  been  inflicted,  bad  the 

authors  of  calumnious  verses,  such  as  would,  in  many  instances,  merit  contempt 
rather  than  legal  penalties,  and  prove  far  more  fatal  to  the  reputation  of  the  author 
than  to  the  honour  of  the  object  of  his  attack,  affords  intrinsic  evidence  sufficient 
to  excite  strong  suspicion  and  doubt  upon  the  subject  in  the  absence  of  the  most 
direct  and  certain  evidence,  of  the  existence  of  such  a  law.  Such  doubts  acquire 
additional  force  from  a  consideration  of  the  sources  from  which  the  Deceinviral 
Code  was  compiled. 

The  Athenian  laws  were  those  which  were  principally  consulted  by  the  framens 
of  the  Twelve  Tables.  Liv.  iii.  13.  Gell.  Noct.  Att.  xx.  i.  but  they  afforded  no  proto- 
type for  such  a  law.  The  laws  of  Solon,  it  is  well  known,  punished  calumniators 
by  subjecting  them  merely  to  pecuniary  fines.  (1  Pet.  Leg.  Attic.  Lycias  in  The- 
omnestem.)  It  is  not  probable,  therefore,  a  priori,  that  the  framers  of  the  new  laws 
would  have  visited  the  offence  with  so  incommensurate  and  vindictive  a  punish- 
ment. It  has,  indeed,  been  suggested  that  this  was  a  part  of  the  Leges  Regiae, 
which  was  retained  in  the  Twelve  Tables.  There  seems,  however,  to  be  no  trace  of 
any  such  prior  law:  and,  from  the  very  passage,  as  quoted  from  St.  Augustine,  it 
may  be  inferred,  that  the  law  of  the  Twelve  Tables  contained  the  first  restraint  of  that 
license  lo  defame,  which  had  been  abused  by  the  Greek  comedians.  Apud  Grascos 
fuit  etiam  lege  concessum  ut  quod  vellet  Comosdia  de  quo  vellet  nominatim  diceret. 
Nostras  contra  duodecim  tabvloi,  &c.  In  the  absence  of  any  historical  evidence  of 
the  previous  existence  of  such  a  law  as  part  of  the  Leges  Regiae,  it  is  improbable 
that  any  such  existed  in  that  rude  and  illiterate  sera  of  the  Roman  history,  previous 
to  the  formation  of  the  Twelve  Tables,  when  few  were  likely  to  offend  by  reading, 
still  fewer  by  writing,  satires.  That  the  Romans,  however,  were  in  the  habit  of 
making  and  reciting  verses  when  the  law  of  the  Twelve  Tables  was  enacted  and 
that  those  laws  contained  sanctions  to  restrain  the  abuse  of  that  practice,  clearly 
appears.  Thus  Cicero,  (Tuscul.  Disp.  lib.  4.  c.  2.)  "Gravissimus  auctor  in  origin- 
ibus  dixit  Cato,  morem  apud  majores  hunc  epularum  fuisse,  ut  deinceps  qui  accu- 
barent  canerent  ad  tibiam  clarorum  virorum  laudes  etque  virtutes.  Ex  quo  pers- 
picuum  est,  ct  cantus  turn  fusse  rescriptos  vocum  sonis,  et  carmini,  quamquam  id 
quidem  etiam  XII.  Tabulce  declarant,  condi  jam  turn  solitum  esse  carmen  ;  quod 
ne  liceret  fieri  ad  alterius  injuriam,  lege  sanxerunt."  It  follows,  that  so  far  was 
Cicero  fronj  knowing  or  supposing  that  any  law  existed  anterior  to  those  of  the 
Twelve  Tables,  which  punished  the  author  of  defamatory  verse,  that  he  even  cites 
the  law  of  the  Twelve  Tables  to  show  that  songs  were  composed  at  all  in  that  re- 
mote age. 

Did  the  Decemviri  create  such  a  Jaw  for  political  purposes,  and  in  order  to  sup- 
port an  usurped  authority  ?  M.  Montesquieu,  the  author,  at  least  the  supporter  of 
this  suggestion,  seems  to  have  eagerly  admitted  the  existence  of  the  law  for  the  pur- 
pose of  building  a  theory  upon  it.  He  attempts  to  show,  that,  of  the  three  great 
forms  of  government,  the  arislocratical  is  that  which  visits  libellers  with  most  sever- 
ity, and  cites  this  law  of  the  Decemvirs  by  way  of  illustration.  To  confute  such  a 
theory  would   he  a  departure  from  our  present  subject.     It  is  strikingly  in  opposition 


cxlvii  PRELIMINARY  DISCOURSE. 

[  *cxlvU  ]   offence,  *to  the  accomplishment  of  which   the  solicitation 
or  libel   tends,  been  actually  committed.     This  observa- 

to  the  description  which  Tacitus  gives  with  so  much  force  and  feeling,  of  the  ulti- 
mum  in  servitute  suffered  by  the  Romans  under  the  tyranny  of  Domitian.  But  if 
there  be  a  difficulty  in  accounting  for  the  origin  of  such  a  law,  there  would  be  a  still 
greater  one  in  accounting  for  the  approbation  which  the  laws  received  as  well 
from  the  Roman  people  as  from  their  historians.  The  punishing  of  those  who  had 
libelled  illustrious  persons,  with  capital  penalties,  under  pretence  of  a  violation  of 
the  Lex  Itesje  Majestatis,  was  accounted  a  tyrannical  and  sanguinary  measure  in  the 
times  of  Sylla,  Augustus,  and  Tiberius  ;  what  then  would  have  been  thought  of 
such  a  penalty  for  defamation  in  an  early  age  of  the  Republic  1  How  is  it  possible 
to  suppose  that  so  severe  and  tyrannical  a  law  would  have  been  favorably  received 
by  the  people,  or  afterwards  commended  by  their  great  historians  ?—( See  Tacitus, 
Annal  iii.  27  ;  Livy,  lib.  1.) 

On  the  other  hand,  in  addition  to  the  weakness  of  the  proof  which  can  be  adduced 
as  to  the  existence  of  such  a  law  as  part  of  the  Twelve  Tables,  and  the  internal  evi- 
dence which  the  supposed  law  affords  to  disprove  itself,  it  may  be  observed  that  the 
laws  of  the  Twelve  Tables  did,  in  fact,  prohibit  all  personal  injuries  under  a  pecuni- 
ary  penally. 

Si  injuriam  faxit  alteri  viginti  quinque  seris  pcenas  sunto. 

In  the  language  of  the  Roman  jurists,  eulier  as  well  as  later,  the  general  term 
injuria  included  a  wrong  by  writing  or  speaking,  as  well  as  by  personal  violence. 
Was  then  a  libeller  by  the  same  law,  punishable  by  a  moderate  pecuniary  fine,  as  a 
compensation  to  the  party  injured,  whilst  his  life  was  forfeited  to  the  state  ?  Or,  if 
the  private  wrong  did  not  fall  within  the  scope  of  the  term  injuria,  was  actual  or  per- 
sonal violence  punished  by  a  fine  only,  whilst  the  slightest  injury  to  reputation,  by  a 
song,  or  by  writing,  was  to  be  visited  by  capital  punishment?  Again,  there  is  great 
reason  for  supposing  that  by  the  laws  of  the  Twelve  Tables,  the  author  of  the  Car- 
men malum  was  subjected,  not  to  capital  punishment,  but  to  corporal  castigation  by 
beating. 

The  principle  of  retaliation  which  was  recognized  by  that  Code,  was  obviously 
inapplicable  in  the  case  of  a  malignant  and  satirical  poem.  To  allow  retaliation 
would  be  but  an  illusory  vindication  to  an  honourable  but  illiterate  man,  who  had 
suffered  from  an  offensive  and  provoking  satire;  and  it  is  not  impossible,  that  the 
subjecting  the  body  of  the  off'ender  to  the  actual  cudgel  of  the  sufferer,  might  be 
deemed  the  approximate  substitute  for  the  use  of  the  invisible  and  intellectual,  but 
rude,  powerful,  and  more  galling  lash  of  satire,  the  application  of  which,  in  return, 
was  impossible.  Be  this  as  it  may,  certain  it  is,  that  the  supplicium  fustuarium  was 
a  punishment  inflicted  upon  libellers  by  the  ancient  Roman  law,  and  as  many  able 
commentators  have,  with  great  reason  supposed,  by  the  law  of  the  Twelve  Tables. 
Horace,  in  his  well-known  lines,  in  reference  to  the  carmen  famosum,  not  only  speci- 
fies the  mode  of  puni-hment,  but  seems  to  cite  the  law  which  inflicted  it  as  the  first 
which  was  made  in  restraint  of  libels  : 


PRELIMINARY  DISCOURSE.  cxlviii 

tion  *ought,  however,  to  be  confined  to  those  instances  [  *clxviii  ] 
where  the  offence  consists  in  the  attempt  to  provoke  or 

Quinetiam  lex 
Poenaque  lata,  malo  quse  noUet  carmine  quemquam, 
Describi;  vertere,  moAnva.  formidine  Justis 
Ad  bene  dicendum  delectandumque  redacti. 

Epist.  lib.  11.  ep.  1.  v.  152. 

That  the  pcena  fustuaria  was  inflicted  on  one  class,  at  least,  of  libellers,  is  eener- 
aliy  admitted  by  the  unanimous  voices  of  legal  as  well  as  poetical  commentators. 
And  it  is  not  easy  to  ascribe  this  mode  of  punishment  to  any  other  period  than  that 
of  the  Twelve  Tables.  Cicero,  as  well  in  the  passage  quoted  by  St.  Augustine, 
from  the  De  Republica,  as  in  that  cited  from  the  Tusculan  Disputations,  expressly 
refers  to  the  law  of  the  Twelve  Tables  as  the  first  which  applied  restraint  to  the  car- 
men infame.  The  punishment,  therefore,  to  which  the  formido  fustis  of  Horace  re- 
fers, could  not  well  be  earlier  than  the  law  of  the  Twelve  Tables;  neither  could  it 
well  be  later,  for  the  context  shows  that  the  poet  was  describing,  aa  matter  of  history 
the  earliest  check  imposed  by  the  law  on  the  publication  of  defamatory  verses. 

Any  later  law  inflicting  such  a  punishment,  must,  in  all  probability,  have  been  en- 
acted previously  to  the  Porcian  law,  which  took  away  from  the  magistrate  the  power 
of  inflicting  corporal  punishment  on  the  person  of  a  Roman  citizen  :  there  is,  how- 
ever, no  trace  to  be  found  of  the  abrogation  of  the  capital  punishment,  and  the  sub- 
stitution of  the  suppliciumjustuarium,  either  in  that  interval  or  at  any  other  time  ;  nor 
does  it  appear  that  capital  punishment  was  ever  inflicted  under  this  supposed  law  of 
the  Twelve  Tables.  Some,  indeed,  have  doubted  whether  the  punishment  by  beat- 
ing was  known  to  the  Decemviral  laws,  (  Hotomann.  c,  77.  ;  Dirksen  on  the  Twelve 
Tables,  511.)  and  therefore  infer  that  the  law  cited  by  Horace  is  of  later  date.  This 
however,  seems  to  be  erroneous  assumption.  See  Cicero  de  Legibus  ;  Augustine  de 
Civ.  Dei,  Lib.  21.  c.  1 1.  Octo  poeuarum  genera  in  legibus  contineniur,  damnum, 
vincula  verbera  talio,  ignomiuia,  exiliuui,  mors,  servitus  :  and  see  Dirksen's  Frag- 
ments of  the  Laws  of  the  Twelve  Tables,  ad.  tab.  8.  fr.  14. 

Again,  allusion  seems  to  be  made  to  the  same  law  in  the  De  Arte  Poetica 

Lex  est  excepta,  Chorusque 
Turpiler  obticuit,  sublato  jure  nocendi. 

It  is  very  diflScult,  indeed,  to  suppose  that  Horace  and  Cicero  did  not  allude  to  the 
same  law,  when  each  was  speaking  of  the  abuses  which  had  arisen  from  unrestricted 
license,  and  of  the  legal  restraints  which  those  abuses  had  occasioned.  Nor  is  it  easy 
to  suppose  that  Horace,  in  the  passages  cited,  referred  to  dififerent  laws.  If,  how- 
ever, the  law  of  the  Twelve  Tables  visited  this  offence  with  fustigation,  it  is  impos- 
sible to  suppose  that  the  punishment  was  capital.  It  has  indeed  been  suggested  that 
Cicero,  in  the  passage  cited  from  St.  Augustine,  asserted  that  the  off'ence  was  capital 
by  the  law  of  the  Twelve  Tables,  because  it  was  a  punishment  which  mic/ht  produce 
death,  although  that  was  a  consequence  not  only  not  intended,  but  prohibited,  by 
he  law.— See  Heineccius,  Ant.  Rom.  Ad.   Inst.  Lib   iv.  tit.  iv.  s.  2. 


cxlix  PRELIMINARY  DISCOURSE. 

[  *cxlix  ]    incite  *some  particular  individual  to  the  commission  of 
an  ofFence.     For  it  may  receive  a  great  aggravation  from 

It  is,  however,  difficult  to  suppose,  that  Cicero,  who  himself,  in  a  passage  already 
cited,  enumerated  distinctly  the  different  modes  of  punishment  authorised  and  prac- 
tised by  the  law,  and  in  which  he  mentions  Verbera  as  distinct  from  all  which  could 
be  considered  capital,  such  as  Mors,  Exilium,  &c.  should  confound  the  quality  and 
degree  of  a  higher  species  of  punishment  with  the  effect  and  possible  consequences 
of  a  distinct  and  inferior  one. — Be  this  as  it  may,  it  is  certain  that  many  critics  acd 
able  commentators  have  maintained  the  opinion  that  the  law  of  the  Twelve  Tables 
punished  the  offence,  not  capitally,  but  by  fustigation. — Fustuarium  supplicium  con- 
stitutum  erat  in  auctorem  carminum  infiimium.  Porphyrion,  ad.  Horat. — Heinnec- 
cius.  Ant.  Rom.  Lib.  iv.  tit.  iv.  s.  2.  Lege  xii.  tabularum  cautum  est  ut  fustibus,  ferir- 
etur  qui  publice  inveheretur. — Cornutus  ad.  Pers.  Sat.  1.  Si  quis,  carmen  occen- 
tassit  quod  alteri  flagilium  faxit,  fuste  caeditor. — Charondas,  S.  55.  Dirksen  ad.  xii, 
Tab.  515,  Si  quis  pipulo  occentassit  carmenve  condidisset  quod  infamiam  faxit flag- 
itiamve  alteri,  fuste  fcrito. — Festus. 

After  all,  it  is  matter  rather  of  speculative  curiosity  than  of  practical  utility,  to  in- 
quire whether  the  decemvirs  did  or  did  not  annex  capital  punishment  to  this  offence  ; 
if  ihey  did,  the  instance  must  stand  as  a  solitary  and  anomalous  memorial  of  bar- 
barous ignorance  and  cruelty  in  the  annals  of  jurisprudence  ;  one  without  a  prototype 
in  former,  or  a  parallel  in  succeeding  generations.  History,  however,  records  no  in 
stance  in  which  this  law,  if  it  existed,  was  ever  put  in  force,  and  in  no  succeeding  age 
of  the  Koman  republic  or  empire,  not  even  under  tlie  worst  seasons  of  imperial  ty- 
ranny and  oppression,  was  the  offence  of  libel  without  distinction  made  capital,  though 
certainly  the  punishment  of  death  was  annexed  in  after  times  to  several  modifications 
of  the  crime.  Notwithstanding  the  charge  which  M.  Montesquieu  has  urged  against 
Sylla,  of  having  augmented  the  punishment  against  libellers  and  satirists,  yet  it  seems 
that  by  his  laws  they  were  in  general  subject  merely  to  pecuniary  fines,  at  least  no 
punishment  is  mentioned  except  one.  See  Matthseus,  ad.  lib.  47.  Dig.  tit.  4,  s.  4. 
The  Cornelian  law  annexed  to  the  offence  a  penalty  of  a  remarkable  nature,  which 
has  given  rise  to  some  doubt :  "  Si  quis  libruni  ad  infamian  alicujus  pertinentem 
scripserit,  composuerit,  ediderit,  dolove  malo  lecerit  quo  quid  eorum  fieret,  etiam  si 
alteriiis  nomine  ediderit,  vel  sine  nomine  de  ea  re  injuriarum  agere  licere  et  si  con- 
demnatus  sit  qui  id  fecit  intestabilem  ex  lege  esse  Jubere."  This  law,  according  to 
some,  was  meant  to  deprive  a  libeller  of  the  right  of  making  a  testament.  The  real 
meaning  seems  to  have  been,  that  he  should  be  incapable  of  giving  his  testimony  in 
a  court  of  justice;  an  appropriate  disqualification,  founded  probably  on  the  presump- 
tion that  a  man  who  by  a  fixise  and  anoni/mous  charge,  whether  of  a  judicial  or  ex- 
tra-judicial nature,  had  deliberately  attempted  to  destroy  the  reputation  of  another 
could  not  be  deemed  worthy  of  credit  as  a  witness. 

The  fact  that  Sylla,  (Cic.  Fam.  Epist.  3.11.)  Augustus,  and  Tiberius,  punished 
those  who  were  guilty  of  writing  libels  on  illustrious  persons  with  death,  under  the 
strained  pretence  of  a  violation  of  the  Lex  Icesa  Majestatis,  is  strong  to  show  that  no 
general  law  then  existed  which  warranted  capital  punishment  It  is  much  more 
probable  that  they  would  have  enforced  or  revived  an  obsolete  law  than  have  incur- 


PRELIMINARY  DISCOURSE.  cl 

its  •tendency  to  produce  a  widely  extended  mischief  from  [  *cl  ] 
its  influence  on  numbers.     As  in  the  case  where  an  of- 

red  tho  odium  of  such  a  manifest  abuse  of  a  different  law.  Til,erius  under  the 
pretence  that  Agrippina,  his  daughter  in  law,  had  indirectly  calunmiated  him,  by  re- 
fusmg  to  eat  apples  which  he  knew  she  did  not  dare  to  taste,  and  which  he'offered 
that  her  refusal  might  afford  a  pretext  for  complaint,  and  also  by  her  seekin"-  rcfu-e 
from  his  monstrous  cruelly  at  tlie  statue  of  Augustus,  caused  her  to  be  beatel  for  the 
supposed  calumnies,  with  such  violence  as  to  force  out  one  of  her  eyes.  Not  content 
with  such  savage  barbarity,  and  jealous  least  a  more  merciful  fate  should  deprive 
h.m  of  his  unhappy  victim,  he  endeavored  to  prevent  a  voluntary  death,  by  forcincr 
food  mto  her  mouth,  and  even  pursued  his  abominable  revenge  beyond  the  grave  bp 
heapmg  insult  on  her  memory.  And  yet  had  this  monster  the  audacity  to  clLim 
commendation  for  his  mercies. 

Quondam  vero  inter  ccenam  porrccta  a  se  poma,  gustare  non  ausam  etiam  vocare 
desut.  s.mulans  se  veneni  crimine  arcessi,  cum  prsestructum  utrunique  consulto  esset, 
ut  et  ipse  tentandi  gratia  offerrct,  et  ilia  quasi  ceriissimum  exitium  caveret.  Novis- 
sime  calumniatus  modo  ad  statuam  August!  modo  ad  exercitus  confugere  veile, 
Pandatariam  relegavit,  convicanintique  ocnlum  per  centunon^m  verberiblis  excussit. 
Rursus  mon  inedia  destinantia,  per  vim  ore  diducto,  infulciri  cibum  jussit.  Sed  et 
perseverantem  atque  ita  absumptani  criminosissime  insectatus  est,  cum  diem  quoqne 
natalem  ejus  inter  nefastos  referendum  suassisset.  Imputavit  etiam  quod  non  laqueo 
strangulatam  in  Gemonias  abjecerit:  pi-o^ue  tali  clementid  interponi  decreium  pas- 
SU9  est,  quo  sibi  gratiiE  agerentur  et  Capitolino  Jovi  doaum  ex  auro  sacraretur. 
SuetoD.  Tiber,  c.  54. 

By  a  senatus  consultum,  it  was  afterwards  prohibited,  ne  quis  in  alterius  injuriam 
ad  statuas  principum  confugeret  imaginesve  eorum  portaret,  qui  secus  faceret  m  vin- 
cula  mitteretur. 

In  the  next  place,  by  a  Senatus  consultum,  as  well  as  by  several  imperial  constitu- 
tions, the  author  or  publisher  of  the  Libellus  Famosus  was  liable  to  capital  punish- 
ment. This  severe  penalty  was  evidently  founded  on  the  principle  of  the  Lex  Tal- 
ionis,  which  called  for  the  infliction  of  death  upon  one  who  had  by  a  false  and  capi- 
tal,  though  secret  judicial  charge,  deliberately  practiced  against  the  life  of  another 
Tiie  severity  of  such  a  law  may  be  accounted  for,  even  though  its  policy  should  not 
be  justified,  by  the  consideration,  that  in  those  times  of  cruelty  and  oppression  for 
which  they  were  calculated,  secret  accusations  of  the  most  heinous  and  improbable 
offences  were  in  effect  but  the  instruments  used  by  legal  assassins;  under  the  rei-^n 
of  a  despotic  emperor,  suspicion  was  equivalent  to  proof;  trial  to  condemnation! 
(Gibbon's  Decline,  &c.)  But  in  order  to  bring  an  offender  within  the  penalty  of  the 
Libellus  Famosus,  it  was,  it  seems,  essential  that  the  charge  should  be  a  secret  one  of 
a  capital  offence;  this  seems  clearly  to  appear  from  a  very  cursory  view  of  the  1ms 
themselves.  Thus  the  first  constitution  of  the  Theodosian  code  (which  contains  a 
senes  of  enactments  relating  to  such  libels,  enacts  as  follows  :-Si  quando  famosi 
hbelh  repenantur,  nuUas  exinde  calumnias  pa.iantur,  quorum  de  factis  vel  nominibus 
ahquid  continebunt,  sed  scriptionis  auctor  potius  reperiater,  et  repertus  cum  omni 
vigore  cogatur,  his  de  rebus  quas  proponendas  credidit  «omprobarc,  &c 

Vol.  1.  21 


cii  PRELIMINARY  DISCOURSE. 

r  *cli  ]     fender  *is  guilty  of  printing  and  circulating  irreligious, 
f  *cliii  ]    seditious,  or  immoral  publications  amongst  society  in  gen- 

Again,  in  the  second,  it  is  observed,  "  Qui  accasandi  fiduciam  gerit  oportet  com- 
probare  nee  occultare  qua  sciverit  quoniam  predicabilis  erit  ad  dictationem  publicam 
merito  perventurus." 

A^ain,  in  the  third,  "Famosis  libellis  fides  habenda  non  est,  nee  super  his  ad  nos- 
tram  scieniiam  referendum,  cum  eosdem  libelios  flammis  protinus  conducat  aboleri 
quorum  auctor  nullus  existit." 

Ao-ain,  by  the  fourth,  "  Tamosa  scriptio  libellornm  quae  nomine  accusatoris  caret 
minlme  examinanda  est,  sed  penilus  abolenda,  nam  qui  accusationis  promotione 
confidat,  libera  potius  intentione,  quam  captiostl  et  occulta  conscriptione,  alterius 
debet  vilam  in  judicium  devocare." 

By  the  fifth,  "Non  igitur  vita  cujusquam  non  dignitas  concussa  Lis  machinis 
vacillabit,  nam  omnes  hujusmodi  libelios  (scil.  famosos)  concremari  decernimus." 

Ao'ain,  by  the  eighth,  "  Jampridem  adversus  calunmias  firmissima  sunt  comparata 
prsesidia.  Nullus  igitur  calumniam  nietuat.  Contumelia  vero  quos  caput  alterius 
contra  juris  ordinem  pulsat.  depressa  nostris  legibus  jaceat,  intercidat  furor  famo- 
sorum  libellorum." 

By  the  ninth,  which  was  an  edict  of  the  Emperors  Valentlnian  and  Valens,  after- 
wards imported  into  the  Digest,  "  Si  quis  fainosum  libellum  sive  domo  sive  in  pub- 
lico, vel  in  quocumque  alio  loco  ignarus  repererit,  aut  corrumpat  prius  quam  alter 
inveniat,  nulli  confiteatur  inventum.  Si  vero  non  statim  easdem  chartulas  corruperit 
vel  igne  consumpserit  sed  earum  vim  manifestaverit,  Sciat  se  quod  auctorem  hujus- 
mondi  delicti  capitali  sententiae  subjugandum.  Sane  si  quis  devotionis  suee  ac  sal- 
ntis  publico  custodiam  gerat,  iiomen  suum  projiteatur,  et  quag  per  famosum  libellum, 
persequenda  putaverit  ore  proprio  edicat,  ita  ut  absque  aulia  trepidatione  accedat,  sci- 
ens  quidem  quod  si  adsertionibus  suis  veri  fides  fuerit  opilulata,  laudem  maximam 
et  praemium  a  nostra  ciementitl  consequetur,  sin  verominime  vera  ostenderit  capi- 
tali poena,  plectetur." 

Sylla,  as  has  already  been  observed,  decreed  that  to  declaim  against  public  officers 
should  be  deemed  a  violation  of  the  Lex  Ifeste  Majestatis.  Augustus  Caesar,  by  a 
forced  and  unwarranted  construction,  extended  the  penalties  of  treason  to  those  who 
libelled  illustrious  characters.  Tiberius  followed  Lis  example,  and  in  his  reign  Cre- 
mutius  Cordus,  charged  with  having  called  Cassius  the  last  of  the  Romans,  escaped 
a  public  execution  merely  by  voluntary  starvation.  In  later  times  of  the  empire, 
the  punishment  of  libellers  was  increased  or  relaxed  according  to  the  temper  and 
disposition  of  the  reigning  monarch.  In  the  place  of  a  moderate,  uniform,  and  per- 
manent administration  of  justice  upon  just  and  firm  principles,  was  substituted  eith- 
er excess  of  severity  or  clemency,  according  to  the  pleasure  of  the  reigning  auto- 
crat. For  though  the  errors  -were  not  usually  on  the  side  of  mercy,  yet  the  Empe- 
ror Theodosius  seems  to  have  carried  Lis  generosity  to  a  somewhat  romantic  extent 
in  avowing  an  intention  to  pardon  all  maledictions  against  himself,  or  the  times  in 
which  he  lived.  —  "  Si  quis  modestiffi  nescius,  et  pudoris  ignarus,  improbo  petulan- 
tique  maledicto  nomina  nostra  credididerit  lacessenda  ac  temulentia  turbulentus  ob- 
trecator  temporum  fuerit,  cum  poena  nolumus  subjugari,  neque  durum  aliquid  ne 


PRELIMINARY  DISCOURSE.  clii 

eral,  *at  the  hazard  of  tainting  and  corrapting  the  princi-  [  *clii  ] 
pies  of  the  great  body  of  society. 

*It  seems  to  be  very  doubtful,  whether,  in  point  of     [  *cliii  ] 
principle,  any  penalty  by  fine  or  imprisonment  ought  to 
be  *inflictecl,  in  respect  of  personal  defamation,  where     [  *cliv  ] 
the  injured  individual  can  obtain  complete  satisfaction 
in  damages.     It  Avould  obviously  be  an  inconvenient  and 
unwarranted  restraint  on  natural  liberty  to  impose  *a      [  *clv  ] 
sentence  of  imprisonment  where  ample  amends  could  be 
made  to  the  injured  party  by  awarding  damages.     The  point  at 
which  penal  visitation  ought  to   begin  to  attach,  either  in  the  ab- 
sence of  reparation  to  the  individual,  or  in  addition  to  it,  is,  where 
either  civil  reparation  cannot  be  enforced,  on  account  of  the  dif- 
ficulty of  making  the  wrongdoer  responsible,  or  where  the  com- 
pelling civil  amends,  is  not  sufficient  to  protect  the  interests  of  the 
public.      Thus,  according  to  the   law  of   England,  the  open  taking 
and  using  the   property  of  another,  is  merely  the  subject  of  a  civil 
action  to  obtain  compensation  in  damages,  and  does  not  amount  to 
a  public  crime  ;  but  where  the  taking  is  under  circumstances  of 
secrecy  or  force,  then  the  civil  action  being  inadequate  to  the  pro- 

que  asperum  sustinere,  qnoniam  id  si  ex  levitate  processerit  contemendum  est,  si  ex- 
insauia  miscratione  digissimum,  is  ab  injuria,  remittendum." 

As  to  the  penalties  denounced  by  the  Mosaic  law,  see  above,  p.  xi;  by  the  laws 
of  Greece,  ib.  p.  xxxiv.  of  France  ;  ib.  p.  xxxii;  of  England,  infra  vol.  ii. 

By  the  law  of  Spain,  he  who  libels  another  by  a  written  defamatory  libel,  (libellos 
infamatorios)  incurs  the  same  punishment  that  the  party  libelled  would  incur  if 
the  imputation  were  true.  And  in  case  the  libel  be  in  writing,  the  libeller  is  not 
exempted  from  punishment  although  the  libellous  matter  be  true.  Bat  in  the  case 
of  oral  slander,  the  party  who  uttered  the  words,  will  be  admitted  to  prove  that  they 
were  true,  if  the  public  were  interested  in  its  being  known  ;  but  if  the  public  be  not 
interested,  he  is  not  admitted  to  such  proof,  and  consequently  incurs  the  punish- 
ment, although  the  slander  be  true,  because  no  one  has  a  right  to  insult  another ; 
and  it  is  always  injurious  and  unjust  to  reproach  others  with  their  defects  or  faults, 
however  true  they  may  be.  Johnson's  Institutes  of  the  Civil  Law  of  Spain,  p.  277. 
By  the  same  law,  he  who  libels  another  with  stigmatising  or  infamous  language  (pa- 
labra  denigrativa)  shall  pay  1,200  maravedis,  and  shall  be  obliged  to  recant  (des- 
decre)  if  he  is  not  a  hidalgo. — ib.  He  who  libela  his  fathermust  pay  600  marave- 
dis ;  400  to  the  injured  party,  and  200  to  the  accuser. — ib. 


civ  PRELIMINARY  DISCOURSE. 

tection  of  society,  the  act  becomes  criminal,  even  in  some  cases, 
of  a  capital  extent  (Z). 

Tlie  effect  of  permitting  an  offender  to  be  visited  criminally,  as 
■well  as  civilly,  in  respect  of  the  same  personal  injury  by  defamation, 
may  frequently  be  to  place  both  proceedings  in  hazard ;  a  court  or 
jury  would  in  all  cases  be  inclined  to  diminish  the  amount  of  civil 
damages,  where  they  supposed  that  the  defendant  would,  in  addition 
to  the  exaction  of  those  damages,  be  further  subjected 
[  *clvi  ]  to  a  criminal  prosecution  and  to  fine,  or  even  *imprison- 
ment,  whilst,  after  the  payment  of  damages,  it  may  be, 
exceeding  the  real  injury,  a  court  or  jury  would  strongly  lean  against 
a  criminal  conviction. 

Tlie  author  had  purposed  to  conclude  these  preliminary  observa- 
tions with  a  brief  historical  sketch  of  the  English  law,  as  connected 
•with  the  subject.  Neither  time  nor  space  at  present  permit  such  a 
detail,  but  it  may  be  proper  to  add  a  few  general  remarks  in  refer- 
ence to  the  law  of  England,  addressed  principally  to  the  English 
law  student. 

Even  to  the  student  it  is  scarcely  necessary  to  observe,  that 
though  his  immediate  object  may  be  to  master  the  details  and  tech- 
nicalities of  a  particular  branch  of  the  law,  he  ought  ever  to  keep 
in  view  another  object  of  great  importance,  and  still  greater  inter- 
est,— the  acquisition  of  a  more  intimate  and  scientific  knowledge  of 
the  principles  on  which  the  legal  system  is  founded,  of  its  peculiar 
genius,  merits,  and  defects. 

It  is  further  to  be  observed,  that  there  is  no  other  branch  of  our 
own  law,  of  equal  importance  and  complexity,  which  depends  so 
little  as  this  does  on  positive  legislative  enactments,  and  consequent- 
ly, so  much  on  precedent  and  common  law  principles. 

That  the  common  law  system,  which  consists  in  applying  to  every 
new  combination  of  circumstances,  rules  of  law  derivable  from  legal 

(/)  Although  the  law  of  England  allows  the  party  libelled  to  proceed,  at  the  same 
time,  both  civilly  for  damages  and  by  indictment,  yet  in  practice  it  very  rarely  hap- 
pens that  the  party  proceeds  in  both  ways.  And  where  an  application  is  made  for  a 
criminal  information  for  a  libel,  the  ordinary  condition  of  granting  it  is,  that  the  ap- 
plicant shall  not  bring  an  action.  Would  it  not  be  desirable,  that  in  all  cases  the 
party  should  be  restricted  to  one  mode  of  proceeding,  and  in  adopting  either,  should 
be  considered  as  having  made  his  election  1 


PRELIMINARY  DISCOURSE.  clv5 

principles  and  judicial  precedents,  possesses  great  and  splendid  ad- 
vantages, can  no  more  be  doubted,  than  that  it  is  subject  also  to 
considerable  defects. 

The  proofs  of  the  latter  position  are  far  too  manifest 
and  too  strong  to  be  overborne,  even  by  the  authority  *of     [  *clvii  ] 
Lord  Coke  himself,  consummate  master  as  he  was  of  all 
the  treasures  of  common  law  learning. 

Nature's  fancied  impatience  of  a  vacuum  was  not  more  complete 
than,  according  to  Lord  Coke,  is  the  abhorrence  of  the  common  law 
from  all  that  is  inconvenient  or  unreasonable. 

Nothing  (he  says)  is  lawful  which  is  inconvenient ;  and,  again, 
"  the  law,  that  is  the  perfection  of  reason,  cannot  suffer  any  thino- 
that  is  inconvenient." 

That  Lord  Coke  should  both  feel  and  express  that  unbounded  ad- 
miration of  the  common  law,  which  was  probably  one  main  found- 
ation of  his  excellence  in  that  branch  of  learning,  and  which  the 
very  consciousness  of  that  excellence  in  turn  served  to  augment, 
cannot  be  matter  either  of  regret  or  surprise  (w)  ;  that 
such  commendation  *ought  to  be  received  with  many  [  *clviii  ] 
grains  of  allowance,  and  that  excessive  panegyric,  how- 
ever agreeable  to  national  prejudices,  is  injurious  in  proportion  as 
it  retards  improvement,  will  not  at  the  present  day  be  disputed. 

(m)  This  great  master  of  the  common  law  of  his  time,  was  never  weary  of  reit- 
erating his  commendation  of  the  law  ;  he  says  1  Ins.  97,  b.  "  an  argument  drawn  from 
an  inconvenience,  is  forcible  in  law,  as  haih  been  observed  before,  and  shall  be  often 
hereafter,  nihil  quod  est  inconvcniens  est  licitum.  And  the  law,  that  is  the  perfection 
of  reason,  cannot  suffer  any  thing  that  is  inconvenient." 

Again,  he  ol)3erves,  "  Nihil  quod  est  contra  rationera  est  licitum.  And  this  is 
another  stronf,^  argument  in  law,  nihil  quod  est  contra  rationem  est  licitum  ;  for  rea- 
son is  the  life  of  the  law,  nay,  the  common  law  itself  is  nothing  else  but  reason, 
which  is  to  be  understood  of  an  artificial  perfection  of  reason,  gotten  by  long  study, 
observation,  and  experience,  and  not  of  every  man's  natural  reason,  for  nemo  nas- 
citur  artifix.  This  legal  reason,  est  summa  ratio.  And  therefore,  if  all  the  reason 
that  is  dispersed  into  so  many  several  heads,  were  united  into  one,  yet  could  he  not 
make  such  a  law  as  the  law  in  England  is  ;  because  by  many  successions  of  ages  it 
hath  beene  fined  and  refined  by  an  infinite  number  of  grave  and  learned  men,  and 
by  long  e.\perience  growne  to  such  a  perfection  for  tiie  government  of  this  realme, 
as  the  old  rule  niay  be  justly  verified  of  it  ;  neminem  oportet  esse  sapientio  rem 
egibus,  no  man  out  of  his  own  private  reason  ought  to  be  wiser  than  the  law, 
which  is  the  perfection  of  reason." 


clvili  PRELIMINARY  DISCOURSE. 

The  common  law,  therefore,  according  to  Lord  Coke,  is  perfect 
reason,  but  to  set  up  the  reason  of  the  best  and  wisest  of  men,  as 
the  standard  of  what  is  lawful,  would  be  in  fact  to  make  individual 
discretion  and  reason  the  rule  of  right,  which  would  be  to  dispense 
with  all  pretentions  to  certainty.  What  is  meant,  then,  as  indeed 
Lord  Coke  himself  expresses  it,  is  not  "  every  man's  natural  rea- 
son," but  artificial  reason,  derived  from  study  and  experience  of  the 
law.  But  as  the  natural  reason  of  one  man  differs  from  that  of  an- 
other, so  not  only  will  one  man  derive  a  conclusion  different  from 
that  of  another,  from  the  same  legal  data  or  precedents,  but  also  in 
the  application  of  the  same  legal  or  artificial  rule  to  the  same  cir- 
cumstances. Artificial  or  legal  reason,  therefore,  so  far  from  ad- 
mitting of  that  unity,  certainty,  and  perfection,  to  which  natural 
reason  cannot  pretend,  is  subject  to  the  like,  and  even  in  some  re- 
spects greater  uncertainty ;  it  necessarily  depends,  in  the  first 
place,  on  the  exercise  of  natural  reason,  and  is,  therefore  liable  to  a 
double  miscarriage,  either  in  the  failure  to  extract  the  true  artificial 
or  legal  reason  ;  or,  2ndly,  in  the  failure  to  apply  that  reason  pro- 
perly, when  once  extracted ;  hence  it  is,  that  in  the  course  of  com- 
mon law,  many  such  miscarriages  occur. 
[  *clix  ]  *For  the  great  and  broad  principles  of  natural  justice, 
there  is  Httle  necessity  for  resorting  to  precedent  or  exam- 
ple ;  they  are  written  in  plain  characters  in  the  minds  of  all  rational 
men.  It  is  in  cases  where  such  principles  conflict  with  each  other, 
or  with  extrinsic  considerations  of  convenience,  or  where  opposite 
suggestions  of  mere  convenience  or  inconvenience  are  at  variance 
with  each  other,  that  different  minds  will  attain  to  very  inconsistent, 
or  even  opposite  conclusions. 

The  natural  tendency  of  a  system  of  unwritten  law  must  be,  in 
process  of  time,  to  induce  an  inconvenient  degree  of  uncertainty  aris- 
ing from  a  struggle  between  precedent  and  principle,  wherever 
they  differ  or  are  supposed  to  differ. 

To  overturn  precedents  by  applying  a  rule  of  artificial  policy  and 
convenience  inconsistent  with  them,  would  be  to  weaken  the  author- 
ity of  precedent,  one  of  the  great  pillars  of  the  law  ;  to  adhere  with 
serviUty  to  precedents,  merely  as  such,  would  be  to  sacrifice  to  mere 


PRELIMINARY  DISCOURSE.  clix 

precedent,  those  general  principles  of  policy  and  convenience  which 
constitute  the  very  foundation  of  the  system. 

It  is,  however,  no  part  of  the  author's  intention,  on  the  present 
occasion,  to  pursue  these  remarks.  Enough  may  already  have  been 
said  on  the  subject,  to  excite  the  attention  of  the  student,  and  induce 
him  to  attend  to  the  operation  and  effect  of  the  common  law  princi- 
ples, maxims,  and  practice  on  this  branch  of  English  jurisprudence. 

In  some  instances,  and  those  important  ones,  it  \vill  be  found  that 
rules  have  been  established,  on  the  mere  foundation  of 
precedent,  as  contradistinguished  from  any  *considerations  [  *clx  ] 
of  reason  or  convenience.  Thus,  so  lately  as  the  year 
1812,  the  important  question  (71)  was  allowed  to  be  mooted,  wheth- 
er the  remedy  by  a  civil  action  for  damages  ought  to  be  allowed 
in  respect  of  any  calumnious  expressions,  when  published  in  writing, 
which  would  not  have  been  actionable  had  they  been  merely  spoken. 
And  upon  that  occasion  the  court,  in  pronouncing  judgment,  avowed 
that  they  were  bound  by  mere  precedent  to  establish  a  rule  which 
was  not  supported  by  reason  or  convenience  (0). 

(n)  It  is  probable  that  the  extension  of  the  remedy  by  action  to  matters,  -when 
■written,  which,  when  spoken  wouiil  not  have  been  aclionable,  was  borrowed  from  the 
civil  law,  though  it  may  be  doubtful  at  what  precise  period  the  rule  was  imported 
into  t!ie  law  of  England.  IVolwiilistanding  the  celebrated  Nolumus  Leges  Angliae 
mutari,  the  laAvjers  of  former  times  had  it  in  their  power,  without  avowing  it,  to  in- 
troduce and  establish  many  of  the  rules  and  maxims,  and  even  much  of  the  prac- 
tice of  the  civil  law.  Bracton,  professing  to  treat  of  the  law  of  England,  copies 
largely  from  the  Institutes  and  Digest,  and  with  so  little  anxiety  to  disguise  the  mat- 
ter, as  even  to  speak  of  the  Prcetor's  authority  and  of  the  Actio  Legis  AquiUcE  ^  in- 
juriarum.  In  treating  of  offences,  in  respect  of  which  the  offender  was  then  liable 
in  the  same  proceeding,  botli  to  a  criminal  and  civil  action,  he  says.  Facta  puniun- 
tur.  .  .  .  scripta,  ut  falsa  et  libelli  famosa.  Again,  he  says  ;  Actio  competit  ei  que 
contumelian  vel  injurium  passus  est. 

(o)  Thorley  v.  Lord  Kerry,  4  Taunt.  355,  and  see  the  observation  of  Best,  C.  J. 
in  the  Archbishop  of  Tuam  v.  Robeson,  5  Bingh,  21.  This  branch  of  the  law  is  subject 
no  one  defect,  which  is  particularly  to  be  deprecated.  Whilst  such  ample  provision 
is  made  for  affording  a  remedy  by  action,  in  respect  of  every  slander  which  can  pos- 
sibly affect  a  party  in  his  profession,  office,  or  means  of  living,  so  that  the  lowest 
mechanic  has  his  remedy  in  damages,  though  none  can  be  actually  proved,  againgt 
any  one  who  detracts  from  his  skill  or  ability,  and  no  one  can  falsely  say  that  a  pub- 
lican sells  sour  beer  but  he  is  responsible,  yet  can  no  action  lie  maintained  in  respect 
of  any  oral  imputation  on  the  character  or  conduct  of  the  most  virtuous  woman,  how- 


cixi  PRELIMINARY  DISCOURSE. 

r  *clxi  1  *Notwithstanding  the  difficulties  whicli  are  incident  to 
the  common  law  system,  the  courts  have  endeavoured  to 
protect  individuals  from  injurious  and  calumnious  imputations,  with- 
out, at  the  same  time,  encouraging  a  spirit  of  vexatious  htigation, 
and  fettering  the  ordinary  and  daily  intercourse  of  society  with  legal 
trammels.  A  remedy  is  afforded  against  all  malicious  attacks,  which 
immediately  tend  to  endanger  the  liberty  of  an  individual,  by  imput- 
ing the  commission  of  a  crime,  or  to  injure  him  in  his  profession, 
office,  trade,  or  means  of  livelihood.  On  the  other  hand,  no  one  is 
liable  to  an  action  for  damages,  so  long  as  he  has  published  that 
which  is  true,  nor  even  although  he  has  mistakenly  and  inadvertent- 
ly published  what  turns  out  to  be  false,  provided  his  error  was  an 
honest  one,  and  the  communication  was  fairly  warranted  by  the  oc- 
casion of  making  it. 

The  penal  provisions  of  the  law  are  founded  on  a  few  just  and 
simple  principles  of  criminal  jurisprudence,  by  no  means  pecuUar  to 
this  branch  of  the  law.  Here,  as  in  other  instances,  freedom  of  ac- 
tion is  the  general  rule,  restraint  the  exception. 

As  the  law  inflicts  punishment  on  any  one  who,  without  authority, 
imprisons  or  beats  another,  so  is  it  penal,  to  assault  or  attack  the 
character  or  credit  of  an  individual,  by  written  or  printed  libels, 

wantonly  and  maliciously  published  (p). 
[  *clxii  ]  *Penal  liability,  in  this,  as  in  other  instances,  attaches 
only  to  an  abuse  of  liberty,  to  the  injury  of  the  public. 
A  man  may  publish  what  he  will  on  all  subjects  of  general  interest ; 
but  if  he  wilfully  and  maliciously  publish  that  which  is  offensive  and 
pernicious,  ho  commits  the  nuisance,  as  in  any  other  cases,  at  the 
just  peril  of  penal  censures. 

It  may  safely  be  asserted,  that  this  portion  of  English  jurispru- 

ever  groundless  and  malicious  in  its  origin,  or  destructive  in  its  consequences,  unless 
some  actual  temporal  damage  can  be  proved. 

(p)  In  confirmation  of  the  general  position,  that  the  law  of  England,  in  respect  of 
libel,  is  but  an  application  of  the  general  principles  of  penal  jurisprudence  to  the  par- 
ticular subject  matter,  it  may  be  remarked,  that  the  only  general  and  the  most  impor- 
tant statute  relating  to  the  subject  was  passed  for  the  express  purpose  of  removing  an 
anomaly  which  had  been  introduced  with  respect  to  trials  on  prosecutions  for  libel, 
and  placing  them  on  the  same  footing  with  those  for  other  misdemeanors. 


PRELIMINARY  DISCOURSE.  clxii 

deuce  is  founded  on  just  and  equitable  principles;  that  it  is  charac- 
terized by  a  spirit  of  moderation  and  liberality  suited  to  the  temper 
of  the  people  and  genius  of  the  constitution,  which  has,  in  a  great 
measure,  confided  to  the  people  themselves,  in  their  capacity  of  ju- 
rors, the  guardianship  of  their  own  liberties,  and  that  whilst  no  civi- 
lized nation  has  ever  enjoyed  a  wider  range  of  intellectual  freedom 
its  value  is  enhanced  by  the  reflection  that  the  enjoyment  of  the  priv- 
ilege of  free  discussion  is  not  merely  consistent  with  public  safety,  but 
is  greatly  conducive  to  the  moral  and  pohtical  interests  of  the  com- 
munity. 


Vol.  I.  22 


CHAPTER  I. 


The  provision^  of  the  law  of  England  in  respect  of  communica- 
tions, whether  thej  be  oral  or  written  (a),  which  are  injurious  to 
individuals  or  to  society  at  large,  are  those  : — 

1st.  Of  a  civil  nature,  which  give  a  remedy  in  damages  to  an 
injured  individual ;  or 

2ndly.  Of  a  criminal  nature,  which  are  devised  for  the  security 
of  the  public. 

The  subject  will  first  be  considered  in  reference  to  the  civil  rem- 
edy, concerning  which  it  will  be  convenient  to  inquire : — 

1st.  Under  what  limits  the  law  awards  a  remedy  in  damages  for 
such  an  injury. 

2nd.  The  means  of  obtaining  that  remedy. 

In  general  an  action  is  maintainable  in  respect  of  every  wrong 
or  privation  of  a  legal  right. 

*For  it  would  be  nugatory  to  pronounce  that  any  man     [    *2    ] 
had  a  right,  without  affording  him  the  means  of  enforc- 
ing or  defending  it. 

By  the  same  law,  every  man  has  a  right  not  only  to  his  life, 
limbs,  health,  and  personal  security,  but  also  to  his  good  name  and 
reputation  ;  that  is,  he  has  a  legal  claim  to  be  protected  against 

(a)  It  is  necessary  to  observe,  that,  in  order  to  avoid  repetition,  under  the 
term  written,  are  meant  to  be  included  all  communications  of  whatever  descrip- 
tion, by  writing,  printing,  painting,  or  signs,  as  contradistinguished  from  those 
which  are  merely  oral. 


2  CIVIL  REMEDY. 

false  and  wilful  communications,  whether  oral  or  written,  made  to 
his  prejudice  or  damage. 

The  law  which  recognizes  this  right  also  limits  its  extent. 

This  is  done  by  defining  what  communications  shall  be  regarded 
as  substantively  injurious,  and  therefore  actionable,  though  no  spe- 
cial damage  or  loss  can  be  shown. 

And  by  leaving  all  other  cases  to  the  operation  of  the  general 
principle  of  law,  that  "  Where  a  man  has  a  temporal  loss  or  damage 
by  the  wrong  of  another,  he  shall  have  an  action  on  the  case  to  be 
repaired  in  damages"  (h). 

For  this  general  rule  embraces  all  cases,  where  any  special  dam- 
age is  immediately  occasioned  by  a  false  communication,  of  nox- 
ious tendency. 

It  may  be  collected,  from  the  definitions  of  text-writers  and  the 

decisions  of  our  court,  that,  in  general,  an  action  lies  to  recover 

damages    in  respect  of   any  false    and   malicious   com- 

[    *3  ]      munication,  *whether  oral  or  written,  to  the   damage  of 

another  in  law  or  in  fact. 

It  may,  perhaps,  be  more  properly  stated,  that  an  action  lies  in 
respect  of  any  wilful  communication,  oral  or  written,  to  the  dam- 
age of  another,  in  law  or  in  fact,  made  without  lawful  justification 
or  excuse. 

It  will  be  seen  that  these  descriptions  do  not  difier  in  substance,  and 
that  li  malice  be  used  as  a  descriptive  term,  it  must  be  understood 
of  malice  in  a  technical  and  artificial  sense,  as  merely  signifying  the 
absence  of  any  legal  justification  or  excuse  (e).  [1] 

{b)   1  Cora.  Dio^.  action  on  the  case  ;  Bac.  Ab.  tit.  Action,  B. 

(c)  See  the  objections  on  this  subject  in  the  Preliminary  Discourse.  The  or- 
dinarylegal  term  by  which  an  injury  of  the  above  description  is  denoted,  is  Slan- 
der;  but  to  this  term,  different  meanings  have  been  attached.  Its  orign  is  the 
same  with  that  of  the  word  Scandal,  being  derived  immediately  from  the  old 
French  word  Esclaunderie,  and  mediately  from  the  Greek  2:xurdu/.0f^  offendicu- 
lum  in  via  positum,  a  military  instrument,  used  for  the  annoying  of  cavalry,  by 
wounding  the  feet  of  the  horses,  and  that  again  from  2'z«^w,  claudico.  There 
is,  therefore,  nothing  in  the  origin  of  the  term,  which  should  confine  its  figura- 
tive application  to  oral,  as  contradistinguished  from  loritten  communications,  al- 
though it  has  frequently  been  used  in  the  former  limited  sense. 

Sir  W.  Blackstone,  in  his  enumeration,    (vol.  3.  p.  123,)  of  injuries,   states. 


DIVISION  OF  THE  SUBJECT.  4 

•It  is,  however,  obvious,  that  whatever  be  the  brief,  [  *4  ] 
general,  and  comprehensive  form  of  words,  used  to  de- 

that  those  affecting  a  man's  reputation  or  good  name,  are,  first  by  malicious, 
scandalous,  and  slanderous  words,  tending  to  his  damage  and  derogation  ;  as  if 
a  man  maliciously  and  falsely  utter  any  slanderer  false  tale  of  another,  &c. 
And  the  same  learned  writer,  in  subsequently  describing  the  injury  to  a  man's 
reputation  by  means  of  a  libel,  omits  the  term  slander  altogether. 

But  if  not  in  common  acceptation,  yet  in  legal  understanding  at  least,  the 
word  is  used  to  embrace  written  as  well  as  oral  defamation  ;  thus,  in  Bacon's 
Abridgment,  (tit.  Slander,)  slander  is  (defined  to  be)  the  publishing  of  words, 
in  ii)n'W?n^  or  by  speaking,  by  means  of  which  the  person  to  whom  they  relate 
becomes  liable  to  suffer  some  corporal  punishment,  or  to  sustain  some  damage. 

In  Comyns'  Digest,  (tit.  Action  upon  the  case  for  Defamation,  A.,)  it  is  laid 
down,  that  "  An  action  on  the  case  lies  for  defamation,  if  a  man  defame  another 
by  slanderous  words  "  And  afterwards  the  following  hypothetical  illustration 
is  cited  as  an  authority  : — "  If  a  man,  by  letter,  write  slander  of  another  to  a 
third  person."     1  And.  119. 

Again,  in  Buller's  Nisi  Prius  3.  slander  is  defined  to  be  "  the  defaming  a 
man  in  his  reputation,  by  speaking  or  writing  words  which  affect  his  life,  office, 
or  trade  ;  or  which  tend  to  his  loss  of  preferment  in  marriage  or  service,  or  to 
his  disinheritance,  or  which  occasion  any  other  particular  damage." 

And,  therefore,  however  desirable  it  might  be  to  possess  some  legal  term, 
which  should  signify  oral  defamation  only,  yet  it  would  be  inconvenient  so  to 
limit  the  term  slander  itself,  in  opposition  to  the  authorities  to  the  contrary  ;  the 
term  will,  therefore,  be  used  in  this  treatise  in  its  general  sense,  as  comprehend- 
ing written  as  well  as  oral  defamation. 

It  seems  also  to  admit  of  some  doubt,  whether  the  term  slander  necessarily 
imports  the  falsity  of  the  matter  communicated.  According  to  Lord  Camden, 
2  Wils.  301.  "  If  the  words  be  true,  they  are  no  slander,  and  may  be  justified.  " 

Sir  W.  Blackstone,  in  his  description  of  the  injury,  (above  cited,)  uses  the 
teims false  tale,  in  context  with,  or  rather  in  explanation  of  the  word  slander. 
And,  in  a  subsequent  passage,  he  observes,  that  "  If  the  defendant  be  able  to 
justify  and  prove  the  words  to  be  true,  no  action  will  lie,  even  though  special 
damage  hath  ensued,  for  then  it  is  no  5/an</er  or/a/se  ^a/e."  Bl.  Comm.  vol.  3. 
p.  125. 

Again,  the  defamation  of  a  peer  is  ordinarily  termed  scandalum  magnatum ;  and 
it  seems  to  be  clear,  that  the  statutes  which  regard  this  offence  relate  to  false  re- 
ports only  :  the  expressions  are  false  news  or  tales,  horrible  and  false  lies,  and 
other  s\ich  false  things.     See  below,  tit.  Scandalum  Magnatum. 

And  it  is  observable  that,  in  those  statutes,  the  word  slander  itself  is  used,  to 
denote  rather  the  scandal,  or'offence  occasioned  by  false  news  or  tales,  than  the 
false  news  itself;  for  they  specify  false  news,  &c.,  whereby  discord,  or  occa- 
sion of  discord,  or  slander  may  grow  between  the  king  and  his  people. 


4  CIVIL  REMEDY. 

scribe  the  outlines  of  such  an  injury,  a  discussion  of  its  different 
branches  must  quickly  resolve  itself  into  a  consideration  ; — 

The  term  itself,  therefore,  seems  to  imply  the  falsity  of  the  communication 
[aa]\  however  this  may  be,  as  it  is  clear  in  point  of  law,  that  no  action  is 
maintainable  where  the  communication  is  true,  it  is  of  little  importance  whether 
the  term  false  be  used  as  descriptive  of  the  right  to  damages,  or  the  truth  be 
enumerated,  as  a  ground  of  legal  justification,  the  result  and  effect  must  be  the 
same.  It  may,  however,  according  to  legal  analogy,  be  more  correct  to  consid- 
er the  truth  of  a  communication  to  be  ground  of  coUateial  justification  or  ex- 
cuse. 

A  man  has  either,  by  his  own  exertions,  acquired  a  good  character,  or,  at  all 
events,  the  law  will  presume  that  he  has  one  ;  to  the  enjoyment  of  this  he  has 
the  same  natural  and  absolute  right  that  he  has  to  the  enjoyment  of  his  liberty, 
health,  or  property  ;  and  any  one  who  curtails  his  enjoyment  of  that  reputation 
is  frimd  facie,  as  much  a  wrong  doer,  as  if  he  deprived  him  of  his  liberty  or 
property.  It  is  true,  that  he  forfeits  his  right  to  the  enjoyment  of  a  good  repu- 
tation by  misconduct,  which  shows  that  he  no  longer  deserves  it ;  but  he  may 
also  forfeit  his  right  to  liberty  by  misconduct— if,  for  instance,  he  commits  a  fel- 
ony, any  one  has  a  right  to  anest  him  :  but,  in  the  one  instance,  as  well  as  the 
other,  in  the  case  of  privation  of  character,  as  well  as  of  liberty,  the  right  to 
take  away  the  reputation  or  liberty  of  another  is  founded  on  a  collateral  fact, 
namely  ;  his  misconduct,  and  depends  partly,  at  least,  upon  considerations  of  ex- 
ternal legal  policy  and  convenience.  A  man  may  have  acquired  a  good  charac- 
ter, as  well  as  a  good  fourtune,  by  unfair  and  fraudulent  means,  yet,  being  pos- 
sessed of  it,  no  stranger  has  a  right,  in  law  or  in  morals,  to  deprive  him  of  either, 
unless  it  be  for  the  attainment  of  some  legal  object,  under  the  sanction  of  a  law 
founded  on  principles  of  public  convenience  and  utility. 

The  law  of  England  recognizes  this  doctrine,  in  requiring  that  the  truth  of 
the  imputation,  if  it  be  relied  on  by  way  of  defence,  shall  be  pleaded  specially, 
by  way  of  justification,  (vide  infra,  tit.  Justification;)  just  as  a  defendant,  in 
case  of  trespass  to  the  person  or  property  of  another,  must,  in  his  defence^ 
plead  those  collateral  facts  specially,  which  show  that  he  was  justified  in  what 
he  did.  This  proves  that  the  law  regards  such  a  justification  as  collateral 
Were  the  falsity  originally  essential  to  the  plaintiff's  right  to  damages,  then, 
although  the  proof  of  the  truth  would  be  incumbent  on  the  defendant,  for  the 
plaintift  would  not  be  put  to  prove  a  negative,  more  especially  where  the  law  pre- 
sumed the  affirmative,  yet  the  defendant  would  be  entitled  to  prove  the  truth  of 
the  charge  under  the  general  issue,  for  he  would  thereby  show  that  an  essential 

[fl  a]  Lord  Ellenborongh  C.  J.,  Mailland  v.  Goldney,  2  East.  426,  observed,  "  In 
order  lo  maintain  this  species  of  action  it  is  necessary  that  there  should  be  :  1.  mal- 
ice in  the  defendant ;  2.  an  injury  to  the  plaintiff;  3.  that  the  words  should  be  un- 
true." 


DIVISION  OF  THE  SUBJECT.  5 

*lsfc.  Of  the  nature,  quality,  and  consequences  of  the  [  *5  ] 
matter  communicated. 

2ndly.  Of  the  act  of  communication. 

ingredient  in  the  plaintiff's  claim  to  recover  was  wanting,  and  that  he  could  no^ 
have  been  guilty  of  the  injury  imputed.  For  these  reasons,  it  maybe  conven- 
ient to  treat  the  truth  of  the  alleged  slander  as  a  collateral  ground  of  defence, 
within  the  words  without  lawful  justification  or  excuse. 

It  may,  however,  be  further  remarked,  that  if,  ex  vi  termini,  the  word  slander 
imports  a  false  charge,  written  slander  cannot  be  used  as  co-extensive  with  libel, 
even  in  the  application  of  the  latter  term  to  mere  personal  written  defamation  ; 
for  the  term  libel  clearly  extends  to  such  written  defamation,  whether  it  be  true 
or  false. 

Again,  the  term  hbel,  (a  mere  diminutive  from  liber,)  has  by  no  means  been 
used  uniformly  and  constantly  to  convey  the  same  meaning,  even  among  law- 
yers, in  its  application  to  defamatory   and  illegal  communications  [a  a.  ] 

In  Bacon's  Abridgment,  tit.  Libel,  it  is  defined  to  he  ^^  a.  malicious  defama- 
tion, expressed  either  in  printing  or  writing,  or  by  signs,  pictures,  &c.,  tending 
either  to  blacken  the  memory  of  one  who  is  dead,  or  the  reputation  of  one  who 
is  alive,  and  thereby  exposing  him  to  public  hatred,  contempt,  and  ridicule." 

In  Comyns'  Digest,  tit.  Libel,  A.,  a  libel  is  defined  to  be  a  contumely  or  re- 
proach, published  to  the  defamation  of  the  government,  of  a  magistrate,  or  of  a 
private  person,  and  it  may  be  in  writing,  5  Co.  125.  b.  As  if  a  man  publishes  a 
rhyme,  epigram,  or  other  writing,  made  to  the  defamation  of  another  ;  oi  it  may 
be  without  writing,  (Salk.  418.)  as  if  he  makes  a  picture  in  an  ignominious 
manner,  or  any  ignominious  sign,  to  the  reproach  of  another,  5  Co.  125.  b. 

Hawkins,  in  his  Pleas  of  the  Crown,  treating  of  libel,  observes,  "  In  a  strict 
sense,  it  (a  libel)  is  taken,  for  a  malicious  defamation,  expressed  either  in 
print  or  writing  ;  in  a  larger  sense,  the  notion  of  libel  may  be  applied  to  any 
defamation  whatsoever,  expressed  either  by  signs  or  pictures,  as  by  affixing 
up  a  gallows  at  a  man's  door,  or  by  painting  him  in  a  shameful  and  ignominious 
manner." 

Sir.  W.  Blackstone,  in  treating  of  libels  as  the  means  of  civil  injury  ;  ob- 
serves, "  A  second  way  of  affecting  a  man's  reputation  is  by  printed  or  written 
libels,  pictures,  signs  and  the  like,  which  set  him  in  an  odious  or  ridiculous 
light,  and  thereby  diminish  his  reputation."  (3  Comm.  125.) 

In  treating  of  the  subject  in  a  criminal  point  of  view,  he  says,  "  Of  a  nature 
very  similar  to  challenges  are  libels,  libelli  famosi,  which,  taken  in  their  largest 
and  most  extensive  sense,  signify  any  writings,  pictures,  or  the  like,  of  an  im- 
moral or  illegal  tendency." 

[a  a]  The  term  Libel  in  the  English  law  is  no  douht  immediately  derived  (however 
differing  from  it  in  many  essential  particnlars,)  from  the  Libellus  Famosus  of  the 
Bomao  Law. 


5  CIVIL  REMEDY. 

Srdly.    Of  the  intention  Tfith  -which    that  communication   was 
made. 

*4tblj.  The  occasion  and   circumstances  of  the   com- 
[  *  6  ]      munication,  as  aflfording  matter  of  justification  or   ex- 
cuse. 
First,  then,  as  to  the  nature,  quality,  and  consequences  of  the 
communication. 

*It  is,  in  the  first  place,  essential  to  the  claim  to  dam- 
[  *  7  ]      ages,  that  the  imputation  should  be  false  ;  for  as,  in 
point  of  natural  justice  and  equity,  no  one  can  possibly 
[  *  8  ]      have  any  claim  or  *title  to  a  false  character,  so  also 
■would  it  be  contrary  to  the  principles  of  public  policy 
[  *  9  ]      and  convenience,  to  permit  a  man  to  make  gain  of  *the 
loss  of  that  reputation  which  he  had  forfeited  by  his  mis- 
conduct (cT). 

But  as  the  law  always  presumes  in  favour  of  innocence ,  and 
therefore  does  not  require  a  plaintiff   to  prove  the  falsity  of  the 

Of  the  definitions  above  referred  to,  none  buLthose  of  Sir.  W.  Blackstone 
comprehend  all  that  may  be  included  under  the  term  lihel;  and  considering  the 
offence  in  its  relation  as  well  to  the  public  as  to  individuals,  libels  may  not  in- 
conveniently or  improperly  be  defined  to  be  "any  writings,  pictures,  or  other 
signs,  which  immediately  tend  to  injuire  the  character  of  an  individual,  or  to 
occasion  mischief  to  the  public." 

[1]  Hamilton  arguendo  in  the  famous  case  of  The  People  v.  Croswell,  3  Johns. 
Cas.  354,  after  observing  what  had  been  remarked  by  Lord  Camden,  that  he 
had  not  been  able  to  find  a  satisfactory  definition  of  a  libel,  said,  that  he  would 
venture  to  submit  a  definition;  and  accordingly  submitted  the  following:  A  li- 
bel is  a  censorious  or  ridiculing  ivriting,  picture  or  sign,  made  with  a  mischiev- 
ous and  malicious  intent  towards  government,  magistrates  or  individuals.  This 
definition  is  spoken  of  by  the  court  in  Steele  v.  Southwick,  9  Johns.  R.  215,  as 
drawn  with  the  utmost  precision. 

TiLGHMAN,  C.  J.  of  Pennsylvania,  defines  a  libel  to  be  "any  malicious  print- 
ed slander  which  tends  to  expose  a  man  to  ridicule,  contempt,  hatred  or  degra- 
dation of  character,"    5  Binney,  340. 

Parsons,  C.  J,  of  Massachusetts,  gives  the  following  definition  :  "  A  libel  is 
a  malicious  publication,  expressed  either  in  printing  or  writing,  or  by  signs  and 
pictures,  tending  either  to  blacken  the  memory  of  one  dead,  or  the  reputation 
of  one  who  is  alive,  and  expose  him  to  public  hatred,  contempt  and  ridicule.' 
4  Mass.  R.  168. 

(d)  See  Preliminary  Discourse,  p.  xxxii. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  9 

.alleged  calumny,  and,  on  the  contrary,  imposes  the  burthen  of 
proving  the  affirmative  on  the  defendant ;  the  truth  of  the  sup- 
posed slander  is,  in  effect,  a  ground  of  justification,  which  must  be 
substantiated  by  the  defendant,  consequently  the  decisions  on  this 
point  will  be  more  properly  considered  hereafter,  in  remarking  up- 
on those  justifications  which  are  recognized  by  the  law. 

In  the  next  place,  the  consequence  of  the  slander  must  be  to  oc- 
casion some  injury  or  loss  to  the  plaintiff,  either  in  laiu  or  wfact. 

As,  in  many  instances,  the  immediate  tendency  of  malicious  slan- 
der is,  to  produce  great  and  irreparable  mischief  to  the  party  whose 
character  is  assailed,  though  none  can  be  proved,  or  can  be  proved 
in  time,  so  as  to  save  the  sufferer  from  great  loss,  or  even  absolute 
ruin,  the  law,  in  particular  instances,  on  grounds  of  the  wisest  poli- 
cy, considers  the  very  publication  of  particular  slander 
*to  be  injurious,  and  to  confer  a  substantive  right  of  ac-  [  *10  ] 
tion  ;  though  no  special  loss  or  damage  can  be  proved. 

In  the  first  place,  then,  in  what  cases  does  the  communication 
amount  to  a  damage  in  law?  Or,  in  other  words,  when  is  the  slan- 
der actionable  without  proof  of  any  special  damage  ? 

The  general  rule  is,  that  "  where  the  natural  consequence  of  the 
words  is  a  damage  ;  as  if  they  import  a  charge  of  having  been  guilty 
of  a  crime  ;  or  of  having  a  contagious  distemper ;  or  if  they  are  pre- 
judicial to  a  person  in  an  office  ;  or  to  a  person  of  a  profession  or 
trade,  they  are  in  themselves  actionable  ;  in  other  cases,  the  party 
who  brings  an  action  for  words,  must  show  the  damage  which  he  has 
received  from  them"  (e). 

It  appears,  that  an  action  may  be  maintained  without  proof  of 
special  damage  in  the  following  cases  : 

Where  a  person  is  charged  with  the  commission  of  a  crime. 

Where  an  infectious  disorder  is  imputed. 

Where  the  imputation  affects  him  in  his  office,  profession,  or  busi- 
ness. 

Where  the  matter  charged  tends  to  his  disinherison. 

Where  the  slander  is  propagated  by  printing,  writing,  pictures,  or 
signs. 

(e)  6  Bac.  Ab.  205. 

Vol.  I.  23 


11  CRIMINAL  CHARGE. 

[  *11  ]         *In  cases  of  scandalum  magnatum. 

It  will  be  considered,  under  each  of  these  divisions,  by 
what  rules  the  extent  of  the  action  in  each  case  is  limited,  and  the 
reasons  upon  which  they  are  founded. 

1st.  Where  a  person  is  charged  with  the  commission  of  a  crime. 

Here  it  may  be  considered, 

1st.    What  must  he  the  nature  of  the  offence  imputed. 

2ndly.  In  what  manner  and  terms  it  must  be  imputed. 

1st.  What  must  be  the  nature  of  the  offence  imputed. 

The  action  for  scandalous  words,  though  of  high  antiquity  (/), 
was  formerly  so  little  resorted  to,  that  between  the  first  and  fifth 
years  of  the  reign  of  Edward  the  Third,  not  more  than  three  instan- 
ces occurred  ((/). 

From  the  commencement  of  the  reign  of  Elizabeth,  such  actions, 
especially  for  words  containing  an  imputation  of  crime,  began  to 
multiply  with  great  rapidity,  a  circumstance  chiefly  attributable  to 
the  increasing  encouragement  which  they  met  with  in  our 
[  *12  ]  courts.  No  settled  *rule,  ascertaining  their  limits,  seems 
however  to  have  been  established  at  any  early  period, 
and  the  mass  of  conflicting  decisions  to  be  met  with  in  the  books, 
exhibits  convincing  marks  of  the  precarious  and  fluctuating  principles 
on  which  they  were  grounded. 

A  struggle  between  two  opposite  inconveniences,  seems  to  have 
created  this  wavering  in  the  minds  of  the  judges.  The  fear  of  en- 
couraging a  spirit  of  idle  and  vexatious  (h)  litigation,  by  affording 
too  great  a  facility  to  this  species  of  action,  was  contrasted  with  the 
mischief  resulting  to  the  public  peace  from  refusing  legal  redress  to 
the  party  whose  reputation  had  been  slandered,  every  day's  experi- 
ence teaching  that  the  remedy,  denied  by  our  courts,  would  most 
surely  be  pursued  by  acts  of  personal  violence.  Accordingly  it  ap- 
pears, that  as  the  former  or  latter  of  these  considerations  preponder- 

(/)  By  the  st.  13  Ed.  1.  it  is  recited,  that  in  cause  of  defamation,  it  hath  been 
granted  already  that  it  shall  be  tried  in  a  spiritual  court,  where  money  is  not  de- 
manded. 

(g)  According  to  Coke,  C.  J.,  3  Bulst.  167, 

(h)  6  Mod.  24. 


CRIMINAL  CHARGE.  12 

ated,  a  more  rigid  or  relaxed  rule  of  decision  was  adopted  by  the 
judges  (i). 

In  Edward's  case  (Jc)  the  defendant  had  charged  the 
*plaintiff  with  having  attempted  to  burn  the  defendant's      [  *13  ] 
house  ;  and  the  court  were  of  opinion  that  the  charge  was 
actionable,  assigning,  generally,  as  the  reason,  that  "  hij  such  speech 
the  plaintiff's  good  name  is  impaired.'^ 

In  Stanhope  v.  Blith  (J),  the  words  were,  "  M.  Stanhope  hath 
but  one  manor,  and  that  he  hath  gotten  by  swearing  and  forswear- 
ing;" and  Wray,  C.  J.  said,  "that  though  slanders  and  false  impu- 
tations are  to  be  suppressed,  because  many  times  '  a  verbis  ad  ver- 
bera perventum  est;'  yet"  he  said,  "  that  the  judges  had  resolved, 
that  actions  for  scandals  should  not  be  maintained  by  any  strained 
construction  or  argument,  nor  any  favour  given  to  support  them ;  for- 
asmuch as  in  these  days  they  more  abound  than  in  times  past,  and 
the  intemperance  and  malice  of  men  increase,  et  malitiis  hominum 
est  obviandum :  and  in  our  books  actiones  pro  scandalis  sunt  raris- 
simce;  and  such  as  are  brought  are  for  words  of  eminent  slanders 
and  of  great  import."  In  Smale  v.  Hammon  (m),  the  words  were, 
"  thou  wert  forsworn,  and  I  can  prove  it."  Upon  motion  in  arrest 
of  judgment,  Williams,  J.  said,  "  this  rule  is  to  be  observed  as  touch- 
ing words,  which  are  actionable  ;  that  is  to  say,  where  the 
words  spoken  do  tend  to  the  infamy,  discredit,  or  *dis-  [  *14  ] 
grace  of  the  party,  there  the  words  shall  be  actionable.'" 
And  the  rule  was  affirmed  by  the  court. 

Yet  so  little  was  this  rule  regarded,  that  in  the  very  next  case 
which  occurred,  where  the  words  were(w)  "  thou  wert  in  gaol  for 
robbing  such  an  one  on  the  highway,"  the  court  differed  in  opinion  ; 
and  Fenner,  J.  held,  that  if  one  saith  of  another,  "  thou  art  as  very 
a  thief  as  any  in  Warwick  Gaol,"  none  being  then  in  prison,  the 

(i)  Out  of  200  successive  cases,  taken  at  random  in  Croke's  Reports  of  cases 
in  the  reign  of  Elizabeth,  15  consist  of  actions  for  words,— a  proportion  some- 
what greater  than  that  of  one  in  fourteen.  If,  upon  the  average,  it  be  supposed 
that  each  individual  case  of  the  two  classes  occupied  the  same  time,  it  will  fol- 
low, that  one  day  out  of  every  fourteen,  must  have  b«en  devoted  by  the  court  to 
this  fruitful  subject  of  litigation. 

(k)  Cro.  Eliz.  6.  (/)  4  Co.  15. 

(m)   1  Bulst.  40.  („)  Bulst.  40. 


14  CIVIL  REMEDY— ACTIONABLE  WORDS. 

words  would  not  be  actionable,  but  otherwise  had  a  felon  been  there 
at  the  time. 

In  Sir  Sarhert  Crofts  v.  Broivn  (o),  the  words  were,  "  Sir  II.  C. 
keepeth  men  to  rob  me."  And  upon  giving  judgment  for  the  de- 
fendant, Coke,  C.  J.  said,  "  We  will  not  give  more  favour  unto  ac- 
tions on  the  case  for  words,  than  of  necessity  we  ought  to  do,  where 
the  words  are  not  apparently  scandalous,  these  actions  being  now  too 
frequent." 

In  the  early  part  of  the  reign  of  Queen  Anne,  Chief  Justice 
Holt  Qp)  observed,  that "  it  was  not  zvorth  while  to  be  learned  on 
the  subject,  but  whenever  any  words  tended  to  take  away  a  man's 
reputation,  he  would  encourage  actions  for  them,  because 
[  *15  ]  so  doing  loould  much  contribute  to  the  *preservation  of 
the  peace."  And  in  another  report  (^)  of  the  same  case, 
he  is  stated  to  have  said,  "  I  remember  a  story,  told  by  Mr.  Justice 
Twisden,  of  a  man  that  had  brought  an  action  for  scandalous  words 
spoken  of  him  ;  and  upon  a  motion  made  in  arrest  of  judgment,  the 
judgment  was  arrested,  and  the  plaintiflf  being  in  the  court  at  the 
time,  said,  that  if  he  had  thought  he  should  not  have  recovered,  he 
would  have  cut  the  defendant's  throat." 

Yet  the  same  learned  judge,  in  a  case  (r)  somewhat  subsequent 
to  the  former,  is  reported  to  have  said,  that  "  to  make  words  action- 
able in  themselves,  it  is  necessary  to  charge  some  scandalous  crime 
by  them."      In  the  case  of  Ogden  and  Turner  (/),  the  defendant 
said  to  the  plaintiff,  "  thou  art  one  of  those  that  stole  my  Lord 
Shaftesbury's  deer."     The  court  held,  "that  words  to  be  of  them- 
selves actionable,  without  regard  to  the  person  or  foreign  help,  must 
either  endanger  the  party'' s  life,  or  subject  him  to  infamous  punish- 
ment, and  that  it  is  not  sufficient  that  the  party  may  be  fined  and 
imprisoned:  for  that,  if  any  one  be  found  guilty  of  any  common 
trespass,  he  shall  be  fined  and  imprisoned,  and  *yet,  that 
[  *16]         no  one  will  assert  that  to  say  one  has  committed  a  tres- 
pass will  bear  an  action,  or  that  at  least  the  thing  charg- 
ed upon  the  plaintiff  must  be  scandalous."     And  in  the 

(o)  3  Bulst.  167.  {p)  Bahr  v.  Pierce,  Holt,  654  ;    6  Mod.  24.  S.  C. 

(q)  Lord  Raym.  959.     (r)  Walmesley  v.  Russel,  6  Mod.  200. 
(s)  6  Mod.  104 ;  2  Salk.  696  ;  Holt,  40. 


CRIMINAL  CHARGE.  16 

same  case  it  was  held,  that  ^here  the  penalty  for  an  offence  by  a 
statute  was  of  a  pecuniary  nature,  an  imputation  of  such  an  offence 
■would  not  be  actionable,  even  though  in  default  of  payment,  the 
statute  should  direct  the  offender  to  be  set  in  the  pillory  was  only 
for  want  of  money,  and  not  the  direct  penalty  given  by  the  statute. 
In  Button  v.  IIeyivard(t'),  Fortescue  Justice  observed,  "  It  was 
the  rule  of  Holt,  C.  J.  to  make  words  actionable  ivhenever  they 
sound  to  the  disreputation  of  the  person  of  whom  they  loere  spoken  ; 
and  this  was  also  Hale's  and  TwisderCs  rule,  and  I  think  it  a  very 
good  rule." 

Such  is  the  nature  of  the  general  rules  upon  which  the  older  de- 
cisions were  founded. 

The  ground  of  an  action  for  words  in  the  absence  of  specific  dam- 
age^ is,  as  has  been  seen,  the  immediate  tendency  in  the  words  them- 
selves to  produce  damage  to  the  person  of  ivhom  they  are  spoken,  in 
which  case,  presumption  supplies  the  place  of  actual  proof.  The  im- 
mediate and  obvious  inconveniences  resulting  from  a 
*charge  of  crime  are,  the  party's  degradation  in  socie-  [  *17  ] 
ty,  and  his  exposure  to  criminal  liability.  In  the  former 
case,  the  presumption  is,  that  he  has  lost  the  benefit  of  intercourse 
with  society  ;  in  the  latter,  that  he  is  placed  in  jeopardy,  and  that 
the  suspicion  excited  by  the  report,  may  produce  a  temporary  depriv- 
ation of  his  liberty  until  his  innocence  can  be  made  manifest  (zi). 
Further  than  the  evil  of  a  temporary  privation,  the  presumption 
cannot  in  general  be  carried,  since  a  mere  false  report  cannot  of  it- 
self affect  the  party's  life  ;  and  if  the  report  be  true,  he  is  not,  as 
will  afterwards  be  seen,  entitled  to  an  action.  Cases  may  however 
occur,  where  the  detriment  may  be  much  more  serious  than  a  tem- 
porary loss  of  liberty.  It  is  very  possible  to  suppose,  for  instance, 
that  an  unfortunate  combination  of  circumstances  may  leave  the 
question  of  guilt  or  innocence,  in  a  capital  case,  so  nicely  poised  in  the 
mind  of  the  jury,  that  a  prejudice  instilled  by  a  previous  report,  may 
turn  the  scale  against  the  accused,  though  really  innocent ;  and  this 

(t)  8  Mod.  24. 

(u)  The  being  of  bad  fame,  or  keeping  company  with  persons  of  scanda- 
lous reputation,  was  formerly  a  reason  for  commitment-  Haw.  b.  2.  c.  12.  p. 
8,9,  10,  11. 


17  CIVIL  REMEDY— ACTIONABLE  WORDS. 

apprehension  was  still  more  formidable,  when  the  law  required  a 
man's  jury  to  be  summoned  from  the  neighborhood,  a  place  likely  to 
be  the  most  strongly  infected  with  the  prejudice.  He 
[  *18  ]  *might  also  be  deprived,  by  means  of  such  slander,  of 
the  benefit  of  general  evidence  as  to  his  character  (v). 
The  liberty  of  every  individual  is  considered  by  the  law  to  be  so 
valuable,  that  the  very  probability  of  its  suspension  is  held  sufficient 
to  enable  him  to  assert  his  innocence  in  court,  to  avert  the  evil  ap- 
prehended, and  to  recover  damages  for  the  injury  at  the  very  ear- 
liest opportunity. 

Since  then  the  grounds  of  action  are  to  be  found  in  one  or  both 
these  consequences,  namely,  the  degradation  of  the  party  in  society, 
or  his  liability  to  criminal  animadversion,  it  becomes  material  to  as- 
certain, by  reference  to  the  decided  cases,  under  what  restrictions 
one  or  both  of  these  can  constitute  the  foundation  of  such  an  action. 
First,  it  is  to  be  observed,  that  though  these  two  consequences  can- 
not be  completely  separated,  inasmuch  as  a  greater  or  less  degree 
of  discredit  must  necessarily  attach  to  every  violation  of  the  exist- 
ing law,  yet  that  the  partifs  jeopardy,  in  a  legal  point  of  view,  is 
regarded  hj  the  laio  as  the  2^'>'i'ncipal  ground  of  action  [1] .  This 
appears  from  the  general  scope  and  tendency  of  the  body 
[  *19  ]  of  cases,  to  be  found  in  the  books  *  relating  to  this  copi- 
ous subject,  in  which,  though  the  discredit  to  the  party 
is  frequently  a  topic  of  discussion,  yet  the  main  question,  for  the 
most  part,  turns  upon  the  penal  consequences  of  the  offence,  and 
the  certainty  wherewith  it  is  charged. 

There  are,  however,  many  instances  to  be  found,  which  prove, 
that  criminal  liability  is  not  always  the  pecuUar  and  exclusive  ground 
of  action,  and  in  which  a  remedy  has  been  given  on  account  of  im- 
putations, which  if  believed  and  even  proved,  could  not  have  sub- 
jected the  plaintiff  to  any  future  penalty : — for  instance. 

The  defendant  said,  "  Robert  Carpenter  (iv^  was  in  Winchester 

{v)  And  as  previous  character  is  usually  taken  into  consideration  in  diminu- 
tion of  punishment,  when  it  is  discretionary,  even  a  guilty  person  may  be  seri- 
ously injured  by  false  reports  to  his  prejudice. 

{lo)  Carpenter  v.  Tarrant,  Rep.  Temp.  Hard.  339 ;  see  also  Cuddington  v. 
WilMns,  Hob,  81 . 

[1]  See  note  [11,  page  43,  infra. 


CRIMINAL  CHARGE.  19 

Goal,  and  tried  for  his  life,  and  would  have  been  hanged  had  it  not 
been  for  Leggat,  for  breaking  open  the  granary  of  farmer  A.  and 
stealing  his  bacon." 

In  (a;)  Gainford  v.  TuJce,  the  words  were — "  Thou  wast  in  Laun- 
ceston  Gaol  for  coining!"  The  plaintiff  replied,  "If  I  was  there, 
I  answered  it  well."  "  Yea,"  said  the  defendant,  "  you  were  burnt 
in  the  hand  for  it  !" 

In  Boston  v.  Tatham  (?/),  the  action  was  brought  for  saying  that 
the  plaintiff  was  a  thief,  and  had  stolen  the  defendant's 
gold.  It  was  contended,  *in  arrest  of  judgment,  that  [  *20  ] 
the  words  not  being  certain  as  to  time,  they  might  be 
taken  to  refer  to  the  time  of  Queen  Elizabeth,  since  which  there 
had  been  divers  general  pardons,  in  which  case  no  loss  could  happen 
from  the  scandal.  But  the  court  said,  that  it  is  a  great  slander,  to 
be  once  a  thief;  and  that  although  a  pardon  may  discharge  of  pun- 
ishment, yet  the  scandal  of  the  offence  remains. 

In  the  above  cases  of  Carpenter  v.  Tarrant  and  Gainford  v. 
TiiJce,  (the  former  of  which  was  cited  by  Lord  Ellenborough,  C. 
J.  in  giving  judgment  in  a  late  case)(2!),  the  words  import,  that 
the  plaintiff  had  been  acquitted  in  the  one  case,  and  punished  in 
the  other ;  neither  imputation,  therefore,  though  believed,  could 
have  exposed  either  of  the  plaintiffs  to  future  liability.  In  these 
and  similar  instances,  it  is  likewise  to  be  observed,  that  though  mo- 
tions were  made  in  arrest  of  judgment,  the  objection  relied  upon 
was,  that  the  words  contained  no  direct  charge  of  felony  ;  and  it 
was  not  insisted  upon  as  essential  to  the  action,  that  the  words  must 
imputo  an  offence  which  may  expose  the  party  to  a  future  prosecu- 
tion, though  there  was  room  in  each  of  these  cases  for  making  the 
objection,  had  it  been  thought  available.  And  in  the  case  of  Bos- 
ton V.  Tathani,  the  court  expressed  an  opinion  that  even 
allowing  *that  the  words  fixed  the  offence  to  a  period,  [  *21  ] 
since  which  the  habihty  to  punishment  must  have  been 
discharged  by  a  general  pardon,  yet  that  the  words  were  actionable 

(x)  Cro.  Jac.  536. 

(y)  Cio.  J.  622.     Vid.  Sty.  49.     Ail.  35.     1  Vin.  Ab.  415.  pi.  8. 

(z)  Roberts  v.  Camden,  9  East.  Rep.  63. 


21  CIVIL  REMEDY— ACTIONABLE  WORDS. 

since  the  scandal  of  the  offence  remained.  And  although  in  these 
cases  the  principal  ground  upon  which  words  of  this  description 
are  held  to  be  actionable  seems  to  have  been  abandoned,  yet  the 
good  sense  of  the  decisions  is  obvious ;  for  were  it  otherwise,  the 
slanderer  might  always  secure  impunity  by  cautiously  asserting 
that  the  party  slandered  had  already  suffered  the  punishment  ap- 
pertaining to  the  imputed  offence  [1] . 

[1]  The  principle  of  the  three  last  cited  cases  is  recognized  in  Van  Ankin  v. 
Wesifall,  14  Johns.  R.  233,  where  it  was  said  by  the  court  in  denying  a  new  trial 
in  an  action  of  slander,  "  the  right  of  the  plaintiff  to  sustain  the  action,  does  not 
depend  upon  the  question  whether  he  is  liable  to  be  prosecuted  and  punished  for 
the  crime  charged  against  him  :  as  when  the  statute  of  limitations  has  run 
against  the  criminal  prosecution,  it  is  still  slander  to  charge  the  party  with  the 
offence."  The  same  principle  was  acted  upon  in  Fowler  v.  Dowdney,  2 
Moody  &  Rob.  119,  which  was  an  action  of  slander  for  saying  of  the  plaintiff 
"  he  is  a  returned  convict."  It  was  held  that  the  words  were  actionable,  im- 
puting an  offence  punishable  by  transportation ;  and  though  the  punishment 
had  been  suffered,  the  obloquy  remained.  It  seems  however  that  in  such  a 
case  the  defendant  may  justify,  Baumv.  Clause,  5  Hill,  196.  See  also  5  Penn. 
R.  372. 

Whether  words  are  actionable  in  themselves,  depends  not  alvpays  upon  the 
mode  of  expression  adopted  by  the  speaker ;  it  frequently  depends  upon  the 
sense  in  which  they  are  understood  by  the  hearers.  If  understood  to  impute  a 
crime,  it  is  immaterial  how  vague  and  doubtful  they  are.  Even  words,  inno- 
cent on  their  face,  may  be  intended  and  understood  in  a  calumnious  sense. 
Words  accompanying  a  slanderous  charge,  showing  the  impossibility  of  the  par- 
ty calumniated  being  subjected  to  an  indictment  or  to  an  infamous  punishment  for 
the  crime  imputed,  may  be  a  mere  ruse  to  evade  the  vigilance  of  the  law.  Wheth- 
er they  be  so  or  not,  is  a  proper  question  for  a  jury.  Management  of  this  kind,  lay- 
ing an  anchor  to  the  windward  for  a  future  day,  is  unavailing.  Hunt  v.  Algar,  6 
Carr.  &  Payne  245,  was  an  action  for  a  libel  copied  by  the  defendant  from  one 
newspaper  into  another,  with  the  sole  addition  of  the  word  Fudge.  The  cause 
was  tried  before  Lord  Lyndhurst,  who  submitted  to  the  jury  the  question 
whether  it  was  the  object  of  the  defendant  by  the  addition  of  that  word  to  vin- 
dicate the  character  of  the  plaintiff,  or  whether  it  was  introduced  merely  for 
the  purpose  of  creating  an  argument  in  his  favour  in  case  proceedings  should 
subsequently  be  had  against  him  ;  and  instructed  them  that  if  the  word  was 
added  only  for  the  latter  purpose,  it  would  not  take  away  the  effect  of  the  li- 
bel. If  on  trial  of  the  cause  the  defendant  can  show  that  the  party  to  whom 
the  crime  was  imputed,  had  in  fact  been  guilty  of  such  crime,  he  may  justify, 
although  at  the  time  of  the  speaking  of  the  words,  the  plaintiff  was  no  longer 
liable  to  indictment  or  punishment ;  otherwise  the  jury  will  be  warranted  to 
conclude  that  the  whole  of  what  was  said  by  the  defendant  is  false,  and  of 
course  will  find  a  veidict  for  the  plaintiff. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  21 

Supposing  it,  however,  to  be  perfectly  true,  that  in  some  instances 
the  presumption  of  prejudice  to  the  plaintiff  in  society  is  a  ground 
of  action,  independent  of  any  detriment  in  a  criminal  point  of  view, 
yet  it  appears  to  be  clearly  established,  that  "  iVb  charge  upon  the 
plaintiff,  however  foul,  will  he  actionable  without  special  damage, 
unless  it  be  of  an  offence  punishable  in  a  temporal  court  of  crimi- 
nal -jurisdiction . ' ' 

Thus,  by  a  long  series  of  cases  it  has  been  decided, 
that  to  say  a  man  is  "  forsworn  (a),"  or  *that  he  has  [  "22  ] 
taken  a  false  oath,  generally,  and  Avithout  reference  to 
some  judicial  proceeding,  is  not  actionable  ;  and  the  reason  is,  that 
in  the  latter  case  a  perjury  is  charged,  for  which,  were  the  charge 
true,  the  party  would  be  liable  to  be  indicted  and  punished ;  in  the 
other,  no  more  than  a  breach  of  morality  is  imputed,  of  which  the 
law  does  not  take  cognizance   [1]. 

So,  to  accuse  another  of  having  secreted  (/>)  a  will,  for  the  pur- 
pose of  defrauding  his  relations,  is  not  actionable  :  though  a  person, 
who  by  such  means  possesses  himself  of  the  testator's  property,  would 
be  regarded  by  society  in  no  better  light  than  the  stealer  of  an  horse, 
or  the  picker  of  a  pocket.  Again,  where,  in  general,  bad  princi- 
ples and  vicious  propensities  are  imputed  to  the  plaintiff,  he  is  not 
entitled  to  any  compensation  in  damages  without  proof  of  a  specific 
loss  ;  though  a  person  known  to  possess  such  principles  and  propen- 
sities is  as  likely  to  be  despised  and  avoided  in  society  as  if  he  had 
actually  reduced  them  into  practice. 

The  defendant  (c)  said  of  the  plaintiff,  "  He  is  a  brabbler  and  a 
quarreller,  for  he  gave  his  champion  council  to  make  a  deed  of  gift 
of  his  goods  to  kill  me,  and  then  to  fly  out  of  the  country ;  but  God 
preserved  me." 

(a)  Mo.  365.     Cio.  Eliz.  429 ;  Popham  210,  Ow.  62.  Cro.  Eliz.   135.609. 

720.  788.   1  Vin.  Ab.  40-1.  1  Rol.  Ab.  40.  Com.  Dig.  tit.  Actioa  on  the  case  for 

defamation,  D.  7.  6  Mod.  200. 

(/))  3  Salk.  327.  (c)  Eaton  v.  Allen,  4  Rep.  16.     Cro.  Eliz.  684.  • 

[1]  See   decision  recognizing  this  principle,  Hopkins  v  Beedle,  1  Caines  347 

and  note.  See  also  Stafford  v.  Green,  1  Johns.   R.  505  ;   Ward  v.  Clark,  2  Id. 

10  ;   Watson  v.  Hampton,  2  Bibb's  R.  3I9,and  Jacols  v.  Fyler,  3  Hill  572. 

Vol.  1.  24 


23  CRIMINAL  CHARGE. 

[  *23  ]  *Sir  E.  Coke  (d)^  in  his  comment  upon  this  case,  says, 

"  Upon  great  consideration  and  advisement,  it  was  adjudg 
ed  that  the  -words  in  the  principal  case  -were  not  actionable  ;  for  (he 
adds)  tie  purpose  or  intent  of  a  man,  without  act,  is  not  punishable 
ly  lawP  And  this  rule  seems  in  all  times  to  have  been  adhered  to 
■with  more  consistency  than  is  generally  observable  in  decisions  re- 
lating to  this  branch  of  the  law,  though  many  cases  have  been  deemed 
to  fall  within  the  rule,  where  the  words  plainly  imported  an  act 
done. 

Thus,  in  the  very  case  of  Eaton  and  Alhn  above  cited,  there 
was  more  than  a  mere  intention  to  procure  the  commission  of  a  mur- 
der ;  there  was  a  solicitation  to  commit  one,  which  is  of  itself  an  in- 
dictable offence. 

In  Lewhior  («)  v.  OrucUey,  the  words  were,  "  He  and  another, 
knowing  that  J.  S.,  a  goldsmith,  did  carry  with  him  a  great  deal  of 
plate,  did  lie  in  wait  to  rob  him,  and  set  upon  him  by  the  highway ; 
but  he  raising  the  country,  they  did  fly  away,  and  Lewknor  lost  his 
horse,  and  they  both  were  driven  to  ride  away  upon  one  horse." 
It  was  contended  in  arrest  of  judgment,  that  by  the  plain- 
[  *24  ]  tiff's  own  showing,  no  *felony  was  charged  upon  him,  but 
nothing  more  than  a  mere  intent ;  but  the  court  were  of 
opinion,  that  the  action  well  lay,  for  that  not  only  an  intent,  but  a 
fact  was  charged,  for  which  fine  and  imprisonment  were  due. 

The  cases  are  so  uniform  upon  this  point,  that  it  would  be  super- 
fluous to  cite  further  instances  to  show  that,  for  an  imputation  of 
evil  inclinations  or  principles,  no  action  lies  ;  unless,  indeed,  as  will 
afterwards  be  considered,  it  affect  the  plaintiff  in  some  particular 
character,  or  produce  special  damage.  • 

And  so  general  terms  of  abuse,  expressive  of  evil  inclinations  and 
corrupt  manners,  as  rogue  (/),  rascal,  scoundrel,  and  the  like,  are 
not  actionable,  for  they  do  not  impute  any  precise  and  definite  offence 
punishable  in  the  temporal  courts.     So  it  has  been  said,  that  ike 

id)  4  Co.  16.  pi.  10  ;  and  see  Lord  Ellenborough's  dictum,  4  Esp.  C.  219. 
(e)  Cio.  Car.  140.  (/)  3  Bl.  C.  124.  1  Vin.  Ab.  417. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  24 

ivord  stoindler  is  too  general  to  support  an  action,  but  Mr.  J.  Aston 
formerly  held  otherwise  (^).  [1] 

In  the  case  of  Jones  v.  EerneQi),  C.  J.  Willes  said,  that  if  it  were 
now  res  integra  lie  should  hold,  that  calling  a  man  a  rogue,  or  a 
woman  a  zvhore,  in  public  company,  was  actionable. 

It  seem  also  to  be  clearly  established,  that  words  imputing  an 
offence  (i),  merely  spiritual,  are  not  in  themselves  ac- 
tionable ;  and  the  reason  *assigned  for  this  is  (k),  that  [  *25  ] 
the  person  slandered  may,  for  such  words,  institute  a  suit 
in  the  spiritual  court ;  and  that  if  an  action  were  to  be  entertained 
in  a  temporal  court,  the  party  would  be  twice  punished  for  the  same 
words.  Whatever  merit  this  reason  may  possess,  tlie  rule  itself 
seems  to  be  fully  established,  that  where  oral  defamation  concerns 
matter  merely  spiritual,  and  determinable  in  the  ecclesiastical  court, 
as  if  it  impute  adultery,  fornication,  or  heresy,  it  is  no  ground  of 
action  at  common  law. 

The  power  of  the  spiritual  court  is,  however,  confined  to  the  in- 
fliction of  penance  pro  salute  animce,  and  does  not  extend  (0  to  the 
awarding  damages  or  amends  to  the  injured  party. 

In  the  particular  class  of  cases  where  acts  or  habits  of  incontin- 
ence have  been  imputed  to  females,  much  doubt  has  been  entertain- 
ed, whether  an  action  was  maintainable  :  these,  however,  will  be 
hereafter  considered  under  a  more  appropriate  division  of  the  sub- 
ject, since  it  seems  both  from  actual  decision  and  analogy,  that  such 
imputations  cannot  in  general  be  considered  actionable  as  charging 
a  temporal  crime  \ni). 

In  Barnabas  (n)  v.   Traunter,  the  plaintiff  declared 
*that  he  was  a  parishioner  of  S.,  and  that  the  defendant       [  *26  ] 
being  vicar  there,  with  the  intent  to  scandalize  the  plain- 
tiff, and  to  draw  an  ill  opinion  of  him  among  his  neighbors,  and  to 
exclude  him  from  the  church,  and  to  deprive  him  of  all  the  benefit 

{g)  1  T.  R.  753.  ^       (Ji)  2  Wils.  87.  (i)  4  Co.  20. 

(k)  Salk.  694.  13  Mod.  106.       (I)  4  Co.  20. 

(m)  1  Vin.  Ab.  392.  Cro.  J.  323.  473.  Poph.  36.  (n)  1  Vin.  Ab.  396. 

[1]  It  is  not  actionable  to  call  a  party  a  swindler.  See  Savile  v.  Jardine,  2 
H.  Black.  531 ;  Stevenson  v.  Hayden,  2  Mass.  R.  406  ;  and  Chase  v.  Whitlock, 
3  Hill  139. 


26  CRIMINAL  CHARGE. 

of  hearing  divine  service  in  the  said  church ;  in  the  time  of  divine 
service,  in  the  hearing  of  parishioners,  mahciously  pronounced  the 
plaintiff  excommunicated,  and  further  refused  to  celebrate  divine 
service  till  the  plaintiff  departed  out  of  the  church  ;  upon  which  the 
plaintiff  was  compelled  to  go  out  of  the  church ;  whereas  the  plain- 
tiff was  not  excommunicated  ;  by  which  means  the  plaintiff  was 
scandalized  and  hindered  of  hearing  divine  service  for  a  long  time ; 
and  for  the  clearing  of  this  scandal  and  showing  his  innocency  there- 
in, was  put  to  great  trouble  and  expense.  And  the  action  was  held 
to  be  maintainable,  though  the  plaintiff  did  not  show  that  any  man 
avoided  his  company,  or  forebore  to  trade  or  deal  with  him,  or  that 
he  had  any  temporal  or  special  loss  ;  for  it  was  said,  this  is  a  great 
and  maHcious  scandal,  though  to  his  soul  and  though  spiritual. 

Though  scandal  to  the  soul,  was  the  reason  assigned  for  allowing 
the  plaintiff  to  recover  in  this  instance,  the  case  itself  can  scarcely 
be  considered  as  an  exception  to  the  general  rule ;  for, 
[  *27  ]  though  a  charge  of  excommunication  supposes  *nothing 
more  than  a  spiritual  offence  or  contempt  upon  which  it  is 
grounded,  an  imputation  of  which  offence  would  not  be  actionable, 
and  although  the  deprivations  of  the  spiritual  benefits  complained  of 
cannot  be  considered  as  a  temporal  loss ;  yet,  excommunication  it- 
self is  attended  with  many  serious  temporal  inconveniences  :  the  ob- 
ject of  it  is  excluded  from  the  society  of  all  Christians ;  is  disabled 
to  do  any  act  that  is  required  to  be  done  by  one  that  is  prohus  et 
legalis  liomo  ;  he  cannot  serve  upon  juries ;  cannot  be  a  witness  in 
any  court ;  and,  which  is  still  more  serious,  he  cannot  bring  an  ac- 
tion, real  or  personal,  to  recover  lands  or  money  due  to  him(o). 
He  is  further  liable  to  the  writ  (p)  de  excommunicato  capiendo,  by 
which  the  sheriff  is  directed  to  take  the  offender  and  imprison  him 
in  the  county  goal,  till  he  is  reconciled  to  the  church.  On  the 
ground  of  these  temporal  deprivations  under  which  a  person  excom- 
municated labours,  as  well  as  of  his  having  been  put  to  expense,  the 
above  case  may  perhaps  be  considered  as  authority,  consistently 
with  the  general  rule. 

The  rule  itself  is  liable  to  so  little  doubt  that  it  would  be  losing 

(0)  Litt.  201.  ip)  Fitz.  N.  B.  62. 


CIVIL  EEMEDY— ACTIONABLE  WORDS.  27 

time  topite  cases  in  support  of  it,  otherwise  than  by  way  of  general 
reference  (q'), — one  instance  may  suffice. 

•The  defendant  (r)  said  that  the  plaintiff  "  had  two  [  *28  ] 
bastards,  and  should  have  kept  them  ;"  by  reason  of 
which,  words  and  discord  arose  between  the  plaintiff  and  his  wife, 
and  they  were  hkely  to  have  been  divorced.  After  verdict  it  was 
moved,  in  arrest  of  judgment,  that  these  words  were  not  actionable, 
because  he  doth  not  show  any  temporal  loss,  as  loss  of  marriai!;e,  or 
the  like  ;  but  this  imagination  to  be  divorced  is  not  to  any  purpose, 
and  it  is  but  a  causeless  fear  ;  and  of  that  opinion  was  all  the  court. 

But  where  the  words  impute  an  offence  for  which,  though  of 
spiritual  cognizance,  the  plaintiflF  is  liable  to  punishment  in  a  tem- 
poral court,  they  are  actionable. 

So  that  to  impute  incontinency  to  a  female  in  London  is  action- 
able, because  by  the  custom  of  the  city,  she  is  liable  to  be  carted 
for  her  offence  (s). 

So  the  calling  a  woman,  living  in  the  borough  of  South wark, 
"  whore,"  is  actionable  (C),  because  she  is  liable  to  public  carting 
by  prescription  [1] . 

So,  to  say  that  a  man  is  the  father  of  a  bastard,  is  not  actionable 
unless  it  be  alleged  of  a  bastard  likely  to  become  charge- 
able to  the  parish,  for  *otherwise  he  is  not  liable  to  the     [    *29    ] 
penalties  of  the  statute  (iC)  of  Elizabeth. 

{q)  1  Vin.  Ab.  392.  (r)  Cr.  J.  473. 

is)  12  Mod.  lOG.  Holt.  R.  40.    1  Vin.  Ab.  395. 

(0  Keb.  418.  Sid.  97.     1  Vin.  Ab.  395. 

(u)  Salter  v.  Brown,  1  Vin.  Ab.  397.  Cro   Car.  436. 

[1]  Words  charging  a  married  woman  with  adultery  are  not  /jcr  se  action- 
able ;  so  held  by  the  Supreme  Court  of  New- York,  in  Buys  and  ivife  v.  Gil- 
lespie, 2  Johns.  R.  115;  nor  will  an  action  lie  for  calling  a  woman  a  common 
prostitute,  Brooker  v.  Coffin,  5  Johns.  R.  188.  In  South  Carolina,  words 
charging  a  woman  with  want  of  chastity  are  held  not  to  be  actionable,  2  Nott 
&  McCord  204;  and  so  in  Kentucky,  Elliot  v.  Ailsbury,2  Bibb  473; 
whilst  in  New  Jersey  they  are  held  actionable  for  the  reason  unavailingly 
urged  in  Buys  and  wife  v.  Gillespie,  viz  :  that  there  is  no  ecclesiastical  court  to 
which  the  aggrieved  party  can  resort  for  redress,  Smith  v.  Minor,  1  Coxe's  R. 
16.  In  Connecticut,  words  imputing  incontinence  to  a  female  are  made  action- 
able by  statute,  2  Conn.  R.  707  ;  and  so  in  Pennsylvania,  2  Binney  34,  3 
Serg.  &  Rawle  261. 


29  CRIMINAL  CHARGE. 

So,  to  accuse  another  of  fornication  was  heW  to  be  actionable, 
whilst  the  statute  making  it  a  temporal  offence  was  in  force  (v). 

Althou<fh  the  action  itself  be  limited  to  cases  where  the  offence 
charged  is  defined  by  law,  yet,  as  has  been  shown,  the  placing  the 
party  in  jeopardy  is  not  the  exclusive  ground  of  action.  It  may  be 
asked  then,  as  the  loss  in  some  cases  consists  solely  in  the  prejudice 
to  the  plaintiff's  character  in  society,  without  any  regard  to  his  being 
endangered  in  law,  how  happens  it  that  the  extent  of  the  action  is 
confined  by  the  former  of  these  circumstances,  and  is  not  co-exten- 
sive with  the  latter  ?  The  answer  seems  to  be,  that  though  the 
presumption  of  prejudice  to  the  plaintiff's  character  in  society  is 
frequently  the  most  serious  ground  of  complaint,  yet  that  such  pre- 
judice does  not  in  itself  furnish  a  rule  sufficiently  clear  to  determine 
the  extent  of  the  action.  Whence  it  becomes  necessary  to  adopt 
some  other  boundary,  which  though  not  exactly  commensurate  with 
the  injury  to  be  remedied,  may,  from  the  greater  certainty  and  facil- 
ity with  which  it  can  be  applied,  conduce  in  the  main  to  the  public 

good. 
[  *30  ]  *To  say  that  a  man  is  a  bad  father,  husband,  or  son, 
that  he  is  a  drunkard  or  liar,  or  charge  him  with  want  of 
veracity  in  a  single  instance,  must,  if  the  imputation  be  believed, 
induce  a  worse  opinion  to  be  entertained  of  him  ;  and  must  there- 
fore be  considered  as  a  real  detriment  to  an  innocent  party.  If 
then  discredit  alone  were  to  be  adopted  as  the  criterion,  the  action 
would  extend  to  every  degree  of  discredit ;  a  rule  highly  inex- 
pedient, both  on  account  of  the  endless  htigation  which  it  would 
produce,  and  of  the  other  incident  mischiefs  which  have  been  al- 
ready touched  upon  ;  but  if  it  be  admitted,  upon  the  principle  of 
expediency,  that  some  limitation  be  necessary,  perhaps  none  could 
be  adopted  more  convenient  than  the  one  recognized  by  the  law, 
which  confines  the  action  to  imputations  of  offences  punishable  in 
the  temporal  courts.  The  rule  itself  has  the  advantage  of  clearness 
and  certainty  in  its  operation,  and  is  nearly  co-extensive  with  our 
criminal  code  ;  and  it  is  to  be  remembered,  that  where  imputations 
do  not  fall  within  its  scope,  yet  any  specific  damage  accruing  to  the 
party  in  confidence  of  them,  will  entitle  him  to  a  remedy. 

(v)  2  Sid.  21. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  30 

The  action  then  is  confined  to  cases  where  an  offence  is  charged 
punishable  in  the  temporal  courts  ;  it  is  next  to  be  considered  whe- 
ther the  action  extends  to  all  or  to  luhat  jjortion  of  these. 

*There  may  be  some  impropriety  in  supposing  that  a  [  *31  ] 
violation  of  any  existing  law  is  not  in  some  degree  dis- 
creditable ;  for  although  the  long  catalogue  of  crimes,  defined  in 
our  penal  code,  exhibits  guilt  in  an  almost  infinite  variety  of  shades  ; 
yet  still  the  most  trivial  oSender  cannot  in  strictness  be  deemed 
wholly  exempt  from  blame. 

In  many  instances,  however,  the  discredit  attaching  to  the  com- 
mission of  the  offence  charged,  is  so  minute,  that  it  can  scarcely  be 
considered  as  the  ground  of  action. 

In  this,  therefore,  and  many  other  similar  cases,  the  actionable 
quality  of  the  words  results  not  from  the  degree  of  discredit  attached 
to  the  party,  but  to  the  penal  nature  of  the  ofi'ence  imputed  (a). 

The  defendant  said,  "  thou  hast  harbored  and  received 
thy  son  into  thy  house,  knowing  before,  *that  he  was  a  [  *32  ] 
seminary  priest  (&)."  It  was  held,  that  the  words  were 
scandalous  and  actionable,  the  ofi'ence  having  been  made  felony  by 
statute  (e).  Yet  it  can  scarcely  be  presumed,  that  in  this  case  the 
imputation  could  seriously  injure  the  father's  character  in  society, 
and  consequently  the  remedy  was  given  because  the  words  en- 
dangered him  in  law. 

The  books  abound  with  cases  which  prove,  that  a  charge  of 
TREASON,  or  any  species  of  felony,  whether  it  existed  at  Common 
Law  or  was  so  constituted  by  statute,  has  always  been  considered  as 
actionable  :  to  these  may  be  added  that  of  perjury,  Avhich  in  its 
very  nature  tends  to  destroy  the  plaintiS"'s  credit  in  society  ;    the 

(a)  The  distinction  between  that  which  is  malum  prohibitum  and  malum  in 
se  has  been  frequently  denied  by  great  authorities.  It  seems  indeed  to  be  im- 
possible to  contend  that  any  wilful  violation  of  the  existing  law  is  not  more  or 
less  immoral.  Every  legal  prohibition  must  be  presumed  to  be  a  beneficial  one 
to  society,  and  whoever  voluntarily  offends  against  it,  takes  upon  himself  to 
substitute  his  own  judgment  in  the  place  of  that  of  the  supreme  legislative  au- 
thority of  the  state.  Such  a  practice,  if  general,  would  obviously  be  inexpe- 
dient, and  therefore  immoral,  inasmuch  as  it  would  inevitably  lead  to  frequen 
violations  of  the  existing  law. 

(6)  Smith  v.  Ftynt,  Cr.  J.  300.  (c)  27  Eliz.  c.  2. 


32  CRIMINAL  CHARGE. 

courts  have,  however,  gone  beyond  this,  and  imputations  of  many 
other  misdemeanors  have  given  rise  to  a  numerous  class  of  decisions. 
In  Stojie  v.  Smalcombe  (d),  the  defendant  having  been  arrested 
under  a  warrant  made  upon  a  latitat,  said, "  this  is  a  counterfeit 
warrant,  made  by  Mr.  Stone  (the  plaintift";)"  and  though  it  was 
alleged  for  the  defendant  in  arrest  of  judgment,  that  forging  a  war- 
rant was  not  a  forging  within  the  statute  of  EUzabeth,  the  court 
held,  that  the  words  were  actionable  [1]. 

*So  in  many  cases  the  charging  a  mere  solicitation  or 
[  *33  ]  attempt  to  commit  a  felony  has  been  held  to  be  action- 
able. In  Lady  Cochaine's  case  (e),  the  words  were — 
"  my  Lady  Cockaine  did  offer  two  shillings  to  a  woman  with  child 
to  get  her  a  drink  to  kill  her  child,  because  it  was  gotten  by  J.  S., 
Sir  Thomas  Cockaine's  butler."  And  it  was  moved,  that  an  ac- 
tion did  not  lie  for  the  words ;  but  it  was  adjudged  for  the  plaintiff, 
for  by  them  it  was  said,  the  lady's  credit  is  impaired  ;  and,  if  true, 
there  was  cause  to  hind  her  to  her  good  behaviour,  although  it  was 
not  said,  that  she  did  give  money,  or  that  any  hurt  was  done. 

So  in  Tihhott  v  Eaynes  (/),  the  defendant  said,  "  Tibbott,  and 
one  Gough,  agreed  to  have  hired  a  man  to  kill  me,  and  that  Gough 
should  show  me  to  the  hired  man  to  kill  me."  Upon  motion  in 
arrest  of  judgment,  J.  Gawdy  was  of  opinion,  that  the  words  were 
not  actionable,  because  it  was  not  alleged  that  any  act  was  done  by 
the  plaintiff,  nor  any  thing  put  in  use  by  him,  but  only  a  communi- 
cation between  him  and  Gough  ;  and  that  it  would  have  been  oth- 
erwise had  the  defendant  said,  "  he  hired  a  man  to  kill  me."  But 
Wray  and  Fenner,  justices,  were  of  a  different  opinion,  and  judg- 
ment was  given  for  the  plaintiff.  In  Cardinal's  (^) 
[  *34:  ]  case,  *the  words  were, — "  If  I  had  consented  to  Mr. 
Cardinal,  J.  H.  had  not  been  alive." — And  the  plain- 
tiff had  judgment.      In  the  case  of   Eaton  v.  Allen  (]i)   above 

(rf)Cr.  J.648.  (e)  Cro.  Eliz.  49.  (/)  Ibid.  19i: 

{g)  4  Co.  16.  ih)  4  Co,  16.  Cro,  Eliz.  684. 

[1]  In  Alexander  y.  Alexander,  Q  y^enAeW  141,  a  charge  that  the  plaintiff 
had  forged  the  defendant's  name  to  a  petition  presented  to  the  legislature  was 
held  actionable,  although  it  imputed  an  offence  of  no  higher  grade  than  a  mis- 
demeanor. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  34 

cited,  the  words  were,  "  He  is  a  brabbler  and  a  quarreller,  for  he 
gave  his  champion  council  to  make  a  deed  of  gift  of  his  goods  to 
kill  me,  and  then  to  fly  out  of  the  country,  but  God  preserved  me  :'* 
and  though  the  former  cases  were  cited,  judgment  was  arrested, 
and  the  reason  given  in  the  report  in  Croke  is,  "  that  the  first 
words,  '  he  is  a  brabbler,  &c.'  are  not  actionable  ;  and  that  the  lat- 
ter words,  commencing  with  '  for,^  did  not  contain  any  express  af- 
firmation." But  Lord  Coke  observes,  "  that  it  was  adjudged  in 
this  case  upon  great  consideration  and  advisement,  that  the  words 
were  not  actionable  because  the  purpose  and  intent  of  a  man,  with- 
out act,  is  not  punishable  by  law ;"  this  reason  is,  however,  defec- 
tive, for  solicitation  is  in  itself  an  act ;  and  this  case  was  overruled 
in  the  subsequent  one  of  Lewhnor  v.  Crutclily  (i). 

The  defendant  there  charged  the  plaintiff"  with  having  "  set  upon 
a  goldsmith  in  the  highway  with  intent  to  rob  him."  It  was  con. 
tended  in  arrest  of  judgment,  that  no  felony  was  charged,  but  a 
mere  misdemeanor  [1]  ;  and  the  case  of  Eaton  v.  Allen 
was  cited ;  but  the  court  delivered  their  *opinion3  seri-  [  *35  ] 
atim^  that  the  action  lay,  and  said,  "  that  although  the 
defendant  charged  him  with  an  act  that  is  not  felony,  yet  he 
chargeth  him  not  only  with  the  intention,  but  with  a  fact,  which  is 
as  near  to  felony  as  may  be,  and  with  such  an  offence  as  is  more 
than  intent  only,  and  more  than  riot,  and  for  which  fine  and  im- 
prisonment are  due."  And  Jones,  J.  cited  Wicks' s  case,  where 
the  defendant  said,  "  nine  persons  set  upon  me  to  have  robbed  me 
and  you  (Wicks)  was  one  of  them  ;  and  it  was  adjudged  that  the 
action  lay. 

If  any  distinction  can  be  made  between  the  two  last  cases  (^),  ifc 
consists  in  this  ;  that  in  the  former  there  was  a  solicitation  only,  to 
commit  felony  ;  in  the  latter  there  was  an  overt  act  exercised  in 

(t)  Cro,  Car.  140.  {k)  i.  e.  Eaton  v.  Allen,  and  Leivknor  v.  Cruchley. 

[1]  In  Young  V.  Miller,  3  Hill  21,  it  was  held  that  an  action  lies  for  words  im- 
puting a  misdemeanor  involving  moral  turpitude,  and  subjecting  the  party  to  an 
indictment.  The  words  were,  "  You  have  removed  my  land-mark."  The  re- 
moval of  land-marks  being  declared  by  statute  a  misdemeanor,  subject  to  fine  and 
imprisonment  in  a  county  jail.  See  also  Alexander  v,  Alexander,  9  Wendell 
141,  and  ante  page  29,  n.  [1]. 

Vol.  I.  25 


36  CRIMINAL  CHARGE. 

pursuance  of  a  felonious  intention.  Such  a  distinction  is  at  all  events 
now  no  longer  available,  since  it  is  clear  that  a  solicitation  to  commit 
felony  constitutes  a  misdemeanor  Q}. 

So  -where  the  charge  is  of  a  misdemeanor  not  at  all  connected 
with  felony. 

During  an  election  of  members  (m)  to  serve  in  parliament,  the 
defendant,  holding  up  money  in  his  hand,  said  of  the  plaintiff,  who 

was  a  candidate,  "  these  guineas  are  Mr.  Bendish's  (the 
[  *36  ]       *plaintiff 's)  money,  and  were  given  me  to  vote  for  him ; 

he  has  bought  my  vote,  and  he  shall  have  it."  It  was 
contended,  in  arrest  of  judgment,  ,that  no  words  are  actionable  un- 
less they  subject  the  plaintiff  to  a  temporal  punishment,  and  that 
nothing  had  been  said  that  could  subject  the  plaintiff  to  an  indict- 
ment on  the  statute  ;  but  Holt,  C.  J.  was  clearly  of  opinion,  that 
the  action  lay,  and  judgment  was  given  for  the  plaintiff.  It  is  to  be 
remarked,  that  bribery  was  an  offence  at  Common  Law  (w),  and 
punishable  by  indictment  or  information. 

Where  a  commission  had  been  awarded  (o)  out  of  Chancery,  to 
the  plaintiff  and  three  others,  with  the  assent  of  the  parties  to  a 
suit,  to  examine  witnesses,  and  to  hear  and  determine,  the  defend- 
ant, who  was  one  of  the  parties  (said  of  the  plaintiff),  "  Sir  George 
Moor  is  a  corrupt  man,  and  hath  taken  bribes  of  Richard  King  (the 
other  party  to  the  suit)  ;"  and  likewise  further  said,  "  Richard 
King  hath  set  Sir  George  Moor  on  horseback,  with  his  bribes,  to 
pervert  justice  and  equity."  Upon  motion  in  arrest  of  judgment, 
the  court  said,  "  that  the  plaintiff  having  the  King's  commission  to 

execute,  if  he  take  bribes  to  execute  it,  it  is  a  breach  of 
[  *37  ]       the  trust  reposed  *in  him,  and  is  so  great  an  offence,  that 

he  may  be  indicted  and  fined  at  the  Common  Law ;" 
and  the  plaintiff  had  judgment. 

To  charge  a  person  with  having  given  a  sum  of  money  to  the 
commissioners  to  be  made  purser  of  a  man  of  war,  was  held  action- 
able ;  such  an  offence  being  a  corruption  of  a  public  trust,  and  a 
crime  both  in  the  commissioners  and  the  person  tempting  them,  and 

(Z)  2  East,  6.  (m)  Bendish  v.  Lindsay,  11  Mod.  194. 

(n)  Barr.  1335,  1359.  (o)  Sir  George  Moor  v.  Foster,  Cro.  J.  65. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  37 

the  words  therefore  actionable,  as  imputing  a  criminal  chartre  (v). 
[1]  °   ^^^ 

In  the  case  of  *S'iV  William  Russell  v.  Ligon  (q}  it  was  adjudged 
and  agreed,  that  an  action  lies  for  charging  the  plaintiff  with  being 
the  author  of  a  libel,  though  the  making  a  libel  is  not  an  offence 
which  concerns  life  or  member,  but  punishable  only  by  fine  and  by 
imprisonment  in  the  Star  Chamber,  or  upon  an  indictment  at  Com- 
mon Law.  In  the  principal  case,  it  seems,  however,  to  have  been 
averred  in  the  declaration,  that  the  plaintiff  was  a  justice  of  the 
peace  [2]. 

So  to  say,  a  person  keeps  a  bawdy  house,  is  actionable,  because 
the  offence  is  indictable  ;[3]  and  though  it  has  been  held,  that  such 
words  are  not  actionable,  the  reason  on  which  the  judg- 
ment was  given  is  bad,  for  it  was  assumed  (r),  that  *the      [  *38  ] 
offence  was  not  indictable  at  Common  Law. 

So  to  accuse  a  person  of  subornation  of  perjury  (.9).   [4] 

So  the  charging  another  with  receiving  goods,  knowing  them  to 
be  stolen,  was  actionable,  whilst  the  offence  remained  a  mere  misde- 
meanor, and  punishable  by  fine  and  imprisonment  at  Common  Law. 

For  though  it  was  held  in  the  case  of  Dawes  (0  v.  Bolton,  that 
for  the  words  "  Thou  art  a  knave,  and  hast  received  stolen  swine  ; 
and  hast  received  a  stolen  cow ;  and  thou  knowest  they  were  stolen  !'* 
no  action  lay.  Yet  the  ground  of  decision  was,  that  the  words  were 
to  be  considered  in  mitiori  sensu  ;  and  that  it  might  be,  that  the 
defendant  meant  that  the  plaintiff  had  received  them  as  bailiff  or  lord 
of  a  manor,  who  had  liberty  to  have  waif's  and  felon's  goods  ;  and 

{p)  Furdxj  V.  Stacey,  Burr.  2698. 

(?)  1  Vin.  Ab.  423.  pi.  27.  1.  Com.  Dig.  tit.  Action  on  the  case  for  defama- 
tion 8,  9.   1  Roll.  Ab.  46. 

(r)  Cro.  Eliz.  643.  sed  vid  1  Roll.  44.  1  Buls.  138.  (s)  Cro.  J.  158 

(0  Cro.  Eliz.  888. 

[1]  In  Undsey  v.  Smith,  7  Johns.  R.  359,  it  was  held  that  words  charging  a 
justice  of  the  peace  with  being  bribed  are  actionable;  and  in  Chipmany. 
Cook,  2  Tyler  45G,  where  a  publi?  prosecutor  was  charged  with  corruption, 
an  action  was  held  to  lie. 

[2]  In  Andreas  and  ivife  v.  Koppenheafer ,  3  Serg.  &  Rawle  255,  words  charg- 
ing the  ivife  with  being  the  author  of  a  libel,  were  held  actionable. 

[3]  Action  sustained  for  same  charge,  Martin  v.  Stilwell,  13  Johns.  R.  275. 

[4]  Action  sustained  for  same  charge.  Beers  v.  Strong,  Kirby's  R.  12. 


98  CRIMINAL  CHARGE. 

it  seems  to  have  been  allowed,  that,  had  a  guilty  knowledge  been 
intended,  the  words  would  have  been  actionable.  In  Cox  (ii)  v. 
Humphreys,  the  defendant  said,  "  Thy  boy  (the  plaintiff's  son)  hath 
cut  my  purse,  and  thou  hast  received  it  knowing  it ;  and  hast  the 
rings  and  money  that  were  there  in  thy  hand  !"  And  it 
[  "39  ]  was  held,  that  the  words  were  not  actionable,  because  'it 
did  not  appear  that  a  felonious  taking  was  meant. 

And  it  seems  that  to  charge  a  brewer  with  selling  unwholesome 
beer  is  actionable,  since  the  selling  such  beer  is  an  indictable  of- 
fence (x'). 

In  Sir  Lionel  Walden  {y)  v.  Mitchell  the  defendant  said,  that 
the  plaintiff  went  to  mass,  and  the  words  were  held  actionable  ;  since 
by  the  statute  27  Eliz.  c.  4,  the  offender  was  liable  to  forfeit  .£100, 
and  to  be  imprisoned  for  a  year. 

So,  whilst  the  statutes  against  witchcraft  were  in  force,  it  was 
held,  that  to  say  "  Thou  art  a  witch  and  a  sorcerer,"  was  action- 
able (s)  :  And  Gawdy,  J.  said,  "  If  he  bewitches  men  so  as  they 
die,  it  is  felony ;  if  he  uses  witchcraft  in  any  other  way,  he  shall 
stand  in  the  pillory ;  so  that  is  a  slander  in  every  respect,  and  a 
good  cause  of  action." 

In  Mayne  v.  Digle  (a)  it  is  laid  down,  that  an  action  lies  for  any 
words  which  import  the  charge  of  a  crime  for  which  a  'person  may 
he  indicted. 

From  these  instances  cited,  and  a  number  of  similar  ones  to  be 
met  with  in  the  reports,  it  seems  difficult  to  find  any  oth- 
[  *40  ]  er  limit  for  the  extent  of  the  action  than  that  laid  *down 
in  the  last  case  ;  and  though  there  are  dicta  and  even 
decisions  to  the  contrary,  both  may,  perhaps,  be  considered  as  borne 
down  by  the  current  of  the  authorities  cited,  and  others,  in  which 
words  have  been  considered  actionable,  as  charging  an  indictable 
offence. 

Thus  it  has  been  held,  that  no  action  lies  for  publishing  of  the 
plaintiff,  that  he  is  a  regrator  (h)  ;  and  the  reason  given  is,  because 

(m)  Cro.  Eliz.  889. 

{x)  1  Vin  Ab.  477.  Free.  25.     6  Bac.  Ab.  210. 

{y)  2  Vent.  265. 

(z)  Rogers  v.  Gravat,  Cro.  Eliz.  571. 

(a)  Free.  46.  {b)  Scobel  v.  Lee,  2  Show.  32. 


CRIMINAL  CHARGE.  40 

the  offence  of  regrating,  ig  not  punishable  by  loss  of  life  or  limb  ; 
but  this  decision  cannot  be  considered  as  law,  since  it  is  contradicto- 
ry to  all  the  cases  last  cited. 

So  it  has  been  held,  that  for  the  words  "  Thou  art  a  common  bar- 
retor  (c)  and  I  will  indict  thee  for  it  at  the  next  assizes,"  no  action 
lies. 

But  for  the  words,  "  Thou  maintainest  such  a  suit,"  it  was  said 
by  Popham,  C.  J.  (cZ),  that  an  action  had  been  held  maintainable 
upon  good  deliberation,  in  the  case  of  Sir  H.  Portman  v.  Stow  ell ; 
maintainance  being  unlawful  and  odious . 

In  Ogden  (e)  v.  Turner,  as  already  observed,  it  was  expressly 
held  by  Holt,  C.  J.  that  to  render  words  actionable  it  is 
not  sufficient  that  the  party  may  be  fined  and  *imprison-  [  *41  ] 
ed  for  the  offence.  For  that  if  any  one  be  found  guilty  of 
a  common  trespass,  he  shall  be  fined  and  imprisoned ;  yet  no  one 
■would  assert,  that  to  say  one  has  committed  a  trespass,  will  bear  an 
action.  This  dictum,  however,  was  materially  contradicted  by  what 
fell  from  Ld.  C.  J.  De  Grey,  in  giving  judgment  in  the  case  of  On- 
slow (f)  V.  Some.  ,  In  that  case  he  observed  "  As  far  as  I  can 
collect,  for  determinations  in  actions  for  words,  there  seem  to  be 
two  general  rules  whereby  courts  of  justice  have  governed  them- 
selves, in  order  to  determine  words  spoken  of  another  to  be  actiona- 
ble. The  first  rule  is,  that  the  ivords  must  contaiii  an  express  im- 
putation of  some  crimes  liable  to  punishment — some  capital  offence 
or  other  infamous  crime  or  misdemeanor ;  and  the  charge  upon 
the  person  spoken  of  must  be  precise.  In  the  case  of  Ogden  and 
Turner,  the  words  are,  "  Thou  art  one  of  those  that  stole  my  Lord 
Shaftesbury's  deer  !"  and  were  not  held  actionable  ;  for  though 
imprisonment  be  the  punishment  in  those  cases,  yet  per  Holt,  C.  J. 
'•'■It  is  not  a  scandalous  punishment ;  a  man  may  he  fined  and 
imprisoned  in  trespass  ;  for^''  says  he  "  there  must  not  only  he  im- 
prisonment hut  an  infamous  punishment.''''  I  think  Lord  Holt  car- 
ries it  too  far,  as  to  precision  ;  for  it  is  laid  down  in 
*Finch's  Law  (^),  "  If  a  man'maliciously  utters  anj  false       [  *42  ] 

(c)  Cro.  Eliz.  171.  Yel.  90.  {d)  1  Vin.  Ab.  424.  pi.  34.  Mo.  428. 

(e)  Salk.  696.  Holt.  40.  (/ )  3  Wils.  177.  (g)  185. 


42  CRIMINAL  CHARGE. 

slander,  to  the  endangering  one  in  law,  as  to  say,  '  He  hath 
reported  that  money  is  fallen, '  for  he  shall  be  punished  for  such 
report."  Here  is  the  case  of  a  crime,  and  the  punishment  not 
infamous  ;  and  yet  Finch  seems  to  say,  that  an  action  lies  for 
these  words. 

In  Solt  V.  Scliolefield  (Ji),  Mr.  J.  Lawrence  observed,  with  re- 
gard to  the  case  in  Bulstrode  (z),  "  I  think  Mr.  Justice  Williams 
goes  too  far  in  saying,  that  ivords  that  tend  to  the  infamy,  discredit, 
or  disgrace,  of  the  party,  are  actionable. 

The  most  correct  rule  is  laid  down  in  Onslow  v.  Some.  The 
words  must  contain  an  express  imputation  of  some  crime  liable  to 
punishment,  some  capital  offence,  or  other  infamous  crime  or  misde- 
meanour. There  is  also  a  case  in  Siderfin  (^),  which  is  in  direct 
contradiction  to  the  case  in  Bulstrode." 

In  many  of  the  cases  where  charges  of  crime  have  been  held  ac- 
tionable, it  is  observable  that  stress  has  been  laid  upon  the  terms 
scandalous  and  infamous,  used  as  descriptive  either  of  the  crime 
charged  or  the  punishment  appertaining  to  it.  Although  this  afford 
some  reason  to  infer,  that  the  actionable  qualify  does  not  extend  to 
all  charges  of  misdemeanour  for  which  fine  and  imprison- 
[  *43  ]  ment  *may  be  inflicted,  yet  a  distinction  of  this  nature 
seems  unwarranted  by  the  cases,  and  would  afford  a  very 
dubious  rule,  the  terms  scandalous  and  infamous  being  of  themselves 
words  of  very  indefinite  import.  It  would  be  a  very  difficult  task 
to  ascertain  the  precise  point  in  the  scale  of  offences  where  infamy 
and  scandal  cease  to  attach. 

From  these  authorities,  perhaps,  it  may  be  inferred  generally, 
that,  to  impute  any  crime  or  misdemeanour  for  which  corporal  pun- 
ishment may  be  inflicted  in  a  temporal  court,  is  actionable  without 
proof  of  special  damage  [1]. 

(A)6T.  R.  691.  (i)lBuls.  40.  (A)  1  Sid!  48. 

[1]  The  rule  deduced  by  the  learned  author  of  the  treatise  from  the  cases 
cited  by  him  as  to  the  nature  of  the  offence  imputed,  to  render  the  words  ac- 
tionable per  se,  has  been  restricted  to  more  limited  bounds  by  the  Supreme  Court 
of  the  State  of  New-Yoik.  In  Brooker  v.  Coffin,  5  Johns.  R.  188,  Spencer, 
J.  observed,  "  Upon  the  fullest  consideration  we  are  inclined  to  adopt  this  as 
the  safest  rule,  and  one   which  as  we  think  is  warranted  by  the  cases  :  in  case 


CIVIL  REMEDY— ACTIONABLE  WORDS.  43 

Where  the  j^enalty  for  an  offence  is  merely  pecuniary,  it  does  not 
appear  that  an  action  will  lie  for  charging  it ;  even  though  in  de- 
fault of  payment,  imprisonment  should  be  prescribed  by  the"  statute, 
imprisonment  not  being  the  primary  and  immediate  punishment  for 
the  offence  (I). 

Any  objection  as  to  the  extent  of  the  above  rule,  is  in  a  great 
measure  obviated  by  the  Statute  of  James  I.  which  where  the  dam- 
ages given  do  not  amount  to  forty  shillings,  limits  the  costs  to  the 
amount  of  the  damages:  this  wholesome  provision  was  found  of 
great  use  in  confining-  this  species  of  litigation,  (which  had  before 
increased  to  a  prodigious  extent,)  within  narrower  and  more  con- 
venient boundaries  [1] 

(/)  6  Mod.  104. 
the  charge,  if  true,  will  subject  the  party  charged  to  an  indictment  for  a  crime 
involving  moral  turpitude,  or  subject  him  to  an  infamous  punishment,  the  words 
will  be  in  themselves  actionable."  This  rule  has  been  recognized  by  that  court 
m  the  subsequent  cases  of  Widrig  v.  Oyer  and  wife,  13  Johns.  R.  124  ;  Martin 
V.  Stilwell,  13  Johns.  R.  275 ;  Van  Ness  v.  Hamilton,  19  Johns.  R.  367,  and 
Young  V.  Miller,  3  Hill  22,  and  is  adverted  to  and  approved  by  two  of  the 
judges  of  the  Supreme  Court  of  Pennsylvaiiia,  in  Andreas  and  wife  v.  Koppen- 
heafer,  3  Serg.  &  Rawle  255,  and  by  the  Supreme  Court  of  New-Jersey  in  Lud- 
/wm  V.  McCwm,  1  Harrison's  (N.  J.)  R.  12. 

The  rule  of  the  Supreme  Court  of  New- York  is  fully  supported  by  the  cases 
adverted  to  in  the  text.  In  Walmsley  v.  Russell,  6  Mod.  200,  it  is  said  that 
words  to  be  actionable  in  themselves  must  charge  some  scandalous  crime ;  they 
must  be  such  as  to  impute  to  the  party  an  offence  for  which  he  may  be  indicted, 
Mayne  v.  Digle,  1  Freem.  46,  and  see  Purdy  v.  Stacey,  Burr.  2698  ;  they  must 
endanger  life,  or  subject  to  infamous  punishment ,  Ogden  v.  Turner,  2  Salk.  696. 
In  Onslow  v.  Home,  3  Wils.  177,  it  is  said  they  must  contain  an  express  imputa- 
tion of  some  crime  liable  to  punishment— some  capital  offence  or  other  infamous 
crime  or  misdemeanor.  The  rule  of  Onslow  v.  Home,  is  approved  by  Lawrence. 
J.  in  Holt  V.  Scholefield,  6  T.  R.  694,  and  by  Tilghman,  C.  J.  in  Shaffer  v. 
Kintzer,  1  Binney  542  ;  McClurg  v.  Ross,  5  Binney  218,  and  in  Andreas  and 
wife  v.  Koppenheafer,  above  cited.  See  also  Elliot  v.  AUshury,  2  Bibb's  Ken- 
tucky R.  473. 

In  Massachusetts,  C.  J.  Parker  refused  to  adopt  the  rule  o{  Brooher  v.  Cofflin, 
and  instead  thereof,  laid  down  the  following  :  "  an  accusation  is  actionable 
whenever  an  offence  is  charged  which  if  proved  may  subject  the  party  to  2.  pun- 
ishment, though  not  ignominious,  and  which  brings  disgrace  upon  him."  See 
Miller  V.  Parish,  8  Pick.  385. 

[1]  In  New-York,  unless  the  plaintiff  recovers  a  sum  exceeding ;i//y  dollars 


44  CRIMINAL  CHARGE. 

[  *44  ]  *2ndly.  In  what  manner  must  the  offence  be  imputed. 
Where  the  imputation  contains  a  direct  charge  of  crime 
in  precise  terms,  little  difficulty  can  occur  in  the  application  of  the 
foregoing  rule.  In  most  instances,  however,  an  unpremeditated  use 
of  words  of  doubtful  meaning,  or  an  intentional  selection  of  them, 
for  1he  purpose  of  impunity,  have  occasioned  much  perplexity  and 
litigation.  In  a  great  proportion  of  cases,  the  question  has  been, 
not  whether  a  charge  of  a  specific  offence  is  actionable  ?  but  whether 
in  fact,  any  offence  has  been  charged  by  the  words  ?  The  rule  of 
law  requires,  that  to  ground  an  action, "  words  imputing  crime  must 
be  precise  ;"  but  it  is  by  no  means  essential,  that  they  shall  carry 
on  the  face  of  them  an  open  and  direct  imputation.  Such  a  rule,  it 
is  clear,  would  afford  no  security  against  calumny,  which  may  be  as 
effectually  conveyed  in  artful  allusions  to  collateral  matter,  and 
oblique  insinuations,  as  by  the  most  explicit  assertions. 

It  is,  however  incumbent  upon  the  party  who  complains  that  he 
has  suffered  from  an  imputation  of  crime,  to  show  with  certainty,  the 
injurious  nature  of  the  communication. 

In  order  to  establish  this  point,  two  circumstances  are  neces- 
sary : — 

1st.  That  the  words  or   signs  used  should  either  of 
[  *45  ]     *themselves,  or  by  reference  to  circumstances,  be  capable 
of  the  offensive  meaning  attributed  to  them. 

2ndly.  That  the  defendant  did,  in  fact,  use  them  in  that  sense. 

The  capability  of  the  words  or  signs  to  bear  a  particular  con- 
struction, must,  it  is  evident,  appear  upon  the  plaintiff's  statement 
of  his  case  ;  for  otherwise  it  would  not  judicially  appear  that  he  was 
entitled  to  recover.  That  the  defendant  did,  in  fact,  use  them  in 
that  sense,  is  a  matter  of  evidence  to  be  decided  upon  the  trial, 
which  will  be  a  subject  for  future  consideration.  It  may,  however, 
be  necessary  to  observe  here,  that  if  it  appear  from  the  words  or 
signs  themselves,  or  from  circumstances,  that  they  are  capable  of 
conveying  the  particular  meaning  attributed  to  them  by  the  plaintiff, 
it  will,  after  verdict  for  the  plaintiff,  be  taken  for  granted,  that  the 

in  an  action  for  slanderous  words  or  libel,  he  recovers  no  more  costs  than  dam- 
ages.    2  R.  S.  509,  ^  6. 


CIVIL  REJilEDY— ACTIONABLE  WORDS.  45 

•words  and  signs  were,  in  fact,  used  to  convey  such  meaning  ;  for 
that  is  a  matter  upon  which  the  jury  alone  can  decide,  and  which 
thej'  must  be  convinced  of  before  they  can  give  their  verdict  for  the 
plaintiff. 

Any  objection,  therefore,  to  the  words  or  signs  as  stated  upon  the 
record,  is  grounded  upon  the  supposition  that  it  does  not  sufficiently 
appear,  that  they  are  capable  of  an  actionable  meaning. 

*lt  will  be  proper,  therefore,  next  to  consider  the  dif-  [  *46  ]• 
ferent  kinds  of  ambiguities  which  may  ari^e,  not  only  in 
the  particular  case  where  some  crime  has  been  charged,  and  where 
doubt  most  frequently  occurs,  but  with  relation  to  cases  of  slander 
and  libel  in  general,  which  are  governed  by  the  same  rules  of  con- 
struction. 

Words  or  signs  may  be  divided  into  three  classes  : — 

1st.  Those  which  bear  an  obvious  and  precise  meaning  on  the 
face  of  them  ;  as  if  A.  said  to  B.,  "  You  murdered  C." 

2ndly.  Those  which  on  the  face  of  them  are  of  dubious  import, 
and  are  capable  either  of  a  criminal  or  innocent  meaning  ;  as  if  A. 
says  to  B.,  "  You  were  the  death  of  C." 

3rdly.  Those  which  are  prima  facie  and  abstractedly  innocent, 
and  which  derive  their  offensive  quality  from  some  collateral  or  ex- 
trinsic circumstance;  as  if  A.  say  to  B., '•  You  did  not  murder 
C.  !"  which  words,  from  the  ironical  manner  of  speaking  them,  may 
convey  to  the  hearers  as  unequivocal  a  charge  of  murder  as  the 
most  direct  imputation. 

With  respect  to  ambiguities  arising  out  of  the  second  and  third 
classes,  it  is  now  the  settled  rule  of  law,  that  both  judges  and  juries 
shall  undei  stand  V) or ds  in  that  sense   lohich  the  author 
intended  to  convey  to  the  minds   of  the  hearer's,  *as  evi-     [  *47   ] 
denced  by  the  ivhole  circumstances  of  the  case.     That  it 
is  the  province  of  the  jury,  where  such  doubts  arise,  to  decide,  zvhe- 
ther  the  ivords  ivere  used  maliciously,  and  ivith  a  view  to  defame, 
such  being  matter  of  fact   to  be  collected  from  all  concomitant  cir- 
cumstances;   and  for  the  court  to  determine,  whether  such  ivords, 
taken  in  the  malicious  sense  imp)uted  to  them,  can  alone,  or  by  the 
aid  of  the  circumstances  stated  upon  the  record,  form  the  legal  basis 
of  an  action. 
Vol.  1.  26 


47  CRIMINAL  CHARGE. 

It  was  long,  however,  before  this  rule,  rational  as  it  is,  and  sup- 
ported by  every  legal  analogy,  prevailed  in  actions  for  words  ;  and 
before  the  favourite  doctrine  of  construing  words  in  their  mildest 
sense,  in  direct  opposition  to  the  finding  of  the  jury,  was  finally 
abandoned  by  the  courts. 

A  very  few  specimens  of  cases  where  the  doctrine  of  the  benig- 
nior  se7isus  was  allowed  to  prevail,   may   be   deemed   sufficient. 
"  Thou  art  as  arrant  a  thief  as  any  in  England  ;  for  thou  hast  bro- 
ken up  J,  S.'s  chest,  and  taken  away  40Z."     After  verdict  for  the 
plaintiff,  the  court,  on  motion  in  arrest  of  judgment,  held,  that  the 
action  lay  not :  for,  he   showeth  not  that  he  stole  any  money,  or 
robbed  him  of  any  money ;   for  an  action  is  not  to  be  maintained  by 
intendment ;  but  by  express  words,  and  the  words  do  not  prove  any 
felony  committed  ;  for  the  money  may  be  taken  away, 
[   *48   ]     *and  the  chest  broken  open  in  the  mid-day  (m),  and  in 
the  presence  of  divers,  and  therefore  it  is  not  any  felony. 
The  defendant  said  (w),  "  Thou  art  a  lewd  fellow  ;  thou  didst  set 
upon  me  by  the  highway,  and  take  my  purse  from  me,  and  I  will  be 
sworn  to  it !"     After  judgment  for  the  plaintiff,  error  was  assigned, 
because  the  words  did  not  charge  the  plaintiff  with  felony,  nor  with 
any  felonious  taking  away  ;  and  it  may  be,  he  took  away  the  purse 
in  jest,  or  for  some  other  cause ;  and  of  that  opinion  were  all  the 
Judges  and  Barons.     The  defendant  (o)  said,  "  Thou  art  a  thievish 
rogue,  and  hast  stolen  bars  of  iron  out  of  other  men's  windows !" 
It  was  held,  that  the  action  lay  not ;  for  the  bars  of  iron  are  parcel 
of  the  freehold,  and  the  stealing  of  them  is  not  any  felony  ;  and  it 
shall  not  be  intended  of  bars  lying  in  windows,  as  was  objected  that 
it  might  be  ;  for  it  shall  be  taken  in  the  best  sense  for  the  defendant. 
And  it  was  said,  that  it  was  adjudged  in  one  Bridge's  case,  that  for 
saying,  "  Thou  art  a  thief,  and  hast  stolen  my  corn  in  the  field,"  no 
action  lies ;  for  it  shall  bo  intended  standing  corn,  which  is  not  felo- 
ny ;  wherefore  it  was  adjudged  for  the  defendant. 
[   *49  ]         *In  King  (p)  v.  Bagg.      In  error.      The  action  was 
for  the  words,  "  Mr.  J.  D.  was  robbed  of  £40,  and  100 

(m)  Forster  v.  Browing,  Cro.  J.  687.      (n)  Holland  v.  Stoner,  Cro.  J.  315. 
(o)  Cro.  J.  204.  iP)  Cro.  J.  331. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  49 

marks'  worth  of  plate,  and  Alice  Bagg  (the  plaintiff)  and  J.  S.  had 
it,  and  for  which  they  will  be  hanged  !"  And  after  verdict  and  judg- 
ment for  the  plaintiff,  it  was  assigned  for  error,  that  an  action  lies  not 
for  these  words :  for  he  doth  not  say  that  she  stole  it,  and  it  may  be 
that  they  came  to  it  by  lawful  means ;  and  although  he  saith  that 
they  will  be  hanged  for  it,  these  words  by  themselves  will  not  main- 
tain an  action,  and  they  do  not  enforce  tlie  first  words  ;  wherefore 
the  judgment  was  reversed. 

"Thou  (^)  dost  lead  a  life  in  manner  of  a  rogue,  I  doubt  not  but 
to  see  thee  hanged  for  striking  Mr.  Sydman's  man  who  was  mur- 
dered !"  And  it  was  held  that  the  words  were  not  actionable,  for 
they  are  not  positive  for  the  murder  of  Mr.  Sydman's  servant ;  he 
might  be  beaten  by  the  plaintiff,  and  murdered  by  another.  Actions 
of  slander  do  not  lie  upon  inference. 

It  seems  to  be  unnecessary  to  adduce  more  instances  of  the  preva- 
lence of  this  rule  of  construction ;  the  following  may  be  adduced  in 
support  of  the  more  rational  doctrine  which  now  prevails. 

In  Ceely  (?-)  v.  SosJciiis,  in  error.  The  words  *were,  [  *50  ] 
"  Thou  art  forsworn  in  a  court  of  record,  and  that  I  will 
prove  !"  It  was  contended,  after  verdict  for  the  plaintiff,  that  the 
action  would  not  lie,  because  he  did  not  say  in  what  court  of  record 
he  was  forsworn,  nor  that  he  was  forsworn  in  giving  any  evidence  to 
the  jury ;  that  it  might  be  intended  only  that  he  was  forsworn,  not 
judicially,  but  in  ordin  ary  discourse  in  some  court  of  record :  But 
(per  Croke)  "  Jones,  Berkeley,  and  myself,  held  clearly  that  the  ac- 
tion .well  lay,  and  that  such  foreign  intendment  as  Maynard  (for  the 
defendant)  pretended,  shall  not  be  conceived,  and  it  shall  be  taken 
that  he  spake  these  words  maliciously,  accusing  him  of  perjury ;  and 
for  a  false  oath  taken  judicially,  upon  judicial  proceedings  in  a  court  of 
record  ;  and  shall  be  taken  according  to  the  common  speech  and  usual 
intendment :  as  to  say,  such  a  one  is  a  murtherer,  without  saying 
whom  he  murdered,  or  when,  an  action  lies;  and  it  shall  not  be  in- 
tended that  he  was  a  murtherer  of  hares,  unless  such  foreign  intend- 
ment be  shown  or  discovered  in  pleading." 

iq)  Cro.  J.  331.  Jenk.  302.  (r)  Cro.  Car.  509. 


49  CRIMINAL  CHARGE. 

In  Baal  (ji)  v.  Baggerley^  the  words  were  :  "  Thou  hast  forged 
a  privj  seal  and  a  commission  !  Why  dost  thou  not  break  open  thy 
commission  ?"  And  after  verdict  for  the  phiintiff,  it  was 
[  *51  ]  contended  for  the  defendant,  that  the  *vvords  were  not 
ac'.ionable  ;  for  it  did  not  say  the  king's  privy  seal,  nor 
any  writ  under  the  privy  seal ;  also  he  said  not  what  commission  ; 
and  the  words  subsequent,  "  thy  commission,"  showed  that  he  meant 
a  commission  made  by  the  plaintiff  himself;  but  the  judges  having 
taken  time  to  consider  (Berkeley  doubting)  afterwards,  delivered 
their  opinions — "  That  the  action  well  lies  ;  for  the  words  be  spoken 
maliciously  ;  and  being  alleged  in  the  declaration,  that  he  spake 
them  to  scandalize  him,  for  forging  of  the  privy  seal  and  commis- 
sion ;  and  being  found  guilty,  it  shall  be  intended  according  to  the 
vulgar  interpretation,  to  mean  the  king's  privy  seal,  the  counterfeit- 
ing whereof  is  treason  ;  and  a  commission  shall  be  intended  the 
king's  commission,  under  the  priviy  seal ;"  and  Berkeley  agreed 
with  the  others. 

In  Somers  (f)  v.  Mouse,  the  words  were  :  "  You  are  a  rogue, 
and  broke  open  a  house  at  Oxford  ;  and  your  grandfather  was  forced 
to  bring  over  X30,  to  make  up  the  breach  !"  And  after  verdict 
for  the  plaintiff,  it  was  moved,  in  arrest  of  judgment ;  because,  rogue 
is  not  actionable  ;  and  hrealdng  open  the  house,  but  a  trespass  ;  and 
malting  vp  the  breach,  might  be  repairing ;  but  the  court  seemed 
contrary :  for  upon  all  the  words  together,  a  man  who 
[  *52  ]  heard  *them  could  not  intend  other  than  a  felonious  break- 
ing of  the  house  ;  and  though  in  the  old  books  the  rule 
was,  to  taJce  the  ivords  in  mitiori  sensu,  yet  per  Holt,  theg  would  take 
the  words  in  a  common  sense  according  to  the  vulgar  intendment 
of  the  bystanders. 

In  Baker  (ii)  v.  Peirce,  the  words  were  :  "  Baker  stole  my  box- 
wood, and  I  will  prove  it !"  After  verdict  for  the  plaintiff,  Serjeant 
Darnell  moved,  in  arrest  of  judgment,  that  these  words  are  not  ac- 
tionable ;  for  they  shall  be  taken  to  mean  vrood  growing,  or  the  like, 
whereof  only  a  trespass  can  be  committed.     That  to  say,  you  are  a 

(5)  Cro.  Car.  326.  (t)  Holt,  39. 

(w)  Lord  Eay.  959    6  Mod.  234.  Holt,  654. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  52 

thief,  and  have  stolen  my  timber,  or  my  apples,  or  my  hops,  is  not 
actionable  :  for  where  words  import  either  a  felony  or  a  trespass, 
they  shall  be  taken  in  the  mildest  sense,  unless  there  be  other  words 
to  determine  them  in  the  worse  sense  :  as  to  say,  he  stole  my  tim- 
ber out  of  my  yard,  or  my  hops  in  a  bag  ;  and  cited  Mason  (:c)  v. 
Thompson, — "  I  charge  thee  with  felony  for  taking  forth  from  J.  D.'s 
pocket,  and  I  will  prove  it !"  The  words  were  held  not  to  be  ac- 
tionable, because  it  should  not  be  intended  to  mean  a  felony,  not  be- 
ing directly  affirmed.  But  Holt,  C.  J.  and  the  court  de- 
nied that  case  to  be  law,  for  the  taking  out  *of  a  man's  [  *53  ] 
pocket  must  be  intended  a  felonious  taking. 

For  the  plaintiff  it  was  contended,  that  the  words,  according  to 
common  parlance,  imported  a  thing  of  which  felony  might  be  com- 
mitted. 

And  afterwards  the  court  gave  judgment  for  the  plaintiff;  Powell, 
J.  observing,  "  The  case  cited  by  my  brother  Darnell,  is  so,  but  the 
later  books  are  contrary  ;  and  I  will  stick  to  the  later  authorities, 
being  grounded  on  so  much  reason." 

In  the  case  of  Surges  (?/)  v.  Boucher,  the'  court  observed, 
"  There  are  several  cases  wherein  it  has  been  adjudged,  that  where 
words  may  be  taken  in  a  double  sense,  the  court,  after  a  verdict, 
will  always  construe  them  in  that  sense  which  may  support  the  ver- 
dict:' 

The  plaintiff  brought  his  action  for  the  words,  "  He  (z)  is  a  clip- 
per and  a  coiner!"  After  a  verdict  for  the  plaintiff,  it  was  moved, 
in  arrest  of  judgment,  that  the  words  did  not  charge  the  plaintiff 
with  clipping  or  coining  money ;  for  they  may  be  applied  to  many 
other  things  ;  but  judged  actionable,  for  it  must  be  intended  that 
he  meant  the  clipping  of  money,  and  in  that  sense  it  is  usually  un- 
derstood. 

*In  Rarrison  (a)  v.   Thornhorough,  the  court  observ-       [  *54  ] 
ed,  that,  "  Precedents  in  actions  for  words  are  not  of 
equal  authority  as  in  other  actions,  because  norma  loquendi  is  the 

(x)  Hutt.  38.  iy)  8  Mod.  240. 

(«)  3  Salk.  325.    2  Vent.  172.     2  Lev.  51.     2  Sir  T.  Jo.  235. 

(a)  10  Mod.  196. 


64  CRIMINAL  CHARGE. 

rule  for  the  interpretation  of  words,  and  this  rule  is  different  in  one 
a^^e  from  what  it  is  in  another.  The  words  which  an  hundred  years 
ago  did  not  import  a  slanderous  sense,  now  may,  and  vice  versa. 
In  this  kind  of  actions  for  words,  which  are  not  of  very  great  an- 
tiquity, the  courts  did  at  first  as  much  as  they  could,  discountenance 
them,  and  that  for  a  wise  reason  ;  because  generally  brought  for 
contention  and  vexation,  and  therefore,  where  the  words  were  capable 
of  two  constructions,  the  court  always  took  them  mitiori  sensu. 
But,  latterly,  these  actions  have  been  more  countenanced  ;  for  men's 
tongues  growing  more  virulent,  and  irreparable  damage  arising  from 
words,  it  has  been,  by  experience,  found,  that  unless  men  can  get 
satisfaction  by  law,  they  will  be  apt  to  take  it  themselves.  The  rule, 
therefore,  that  has  now  prevailed,  is,  that  loords  are  to  he  taken  in 
that  sense  that  is  most  natural  and  obvious,  and  in  tvhich  those  to 
whom  they  are  spoken  will  he  sure  to  understand  them. 

In  Burton  (K)  v.  JSayward  and  his  wife,  the  words 
[  *55  ]  spoken  by  the  wife  were,  "  George  Button  *(the  plain- 
tiff) is  the  man  who  killed  my  husband  !"  her  first  hus- 
band being  dead.  After  verdict  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment,  that  these  words  are  not  actionable  for  the  un- 
certainty of  the  word  killing,  for  it  might  be  justifiable,  or  in  his 
own  defence,  or  j?er  infortuniam,  and  shall  not  be  presumed  felon- 
ious, and  so  made  actionable  by  intendment;  for  it  is  a  maxim,  that 
words  shall  be  taken  in  mitiori  sensu.  But  it  was  said  by  Pratt,  C. 
J.  "  There  can  be  no  question  but  at  this  day  these  words  are  ac- 
tionable. In  former  times,  words  were  construed  in  mitiori  sensu^ 
to  avoid  vexatious  actions,  which  were  then  too  frequent :  but  now, 
distinguenda  sunt  tempora :  and  we  ought  to  expound  words  accord- 
ing to  their  general  signification,  to  prevent  scandals,  which  are 
at  present  too  frequent.  We  are  to  understand  words  in  the  same 
sense  as  the  hearers  understood  them  ;  hut  lohen  words  stand  indif- 
ferent, and  are  equally  liable  to  two  distinct  interpretations,  ive 
ought  to  construe  them  in  mitiori  sensu  ;  hut  we  will  never  make 
any  exposition  against  the  plain  7iatural  import  of  the  words.''^ 
"  The  word  killing  signifies  a  voluntary  and  unlawful  killing,  and  is 

(6)  8  Mod.  24. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  55 

actionable.     There  are  a  great  number  of  odd  cases  in  the  books  ;" 

and  by  Eyre,  J.  "  the  words  are  to  be  taken  in  their  worst  sense, 

for  a  malicious  and  felonious  killing ;"  and  by  Fortescue 

J.  '*  The  maxim  *for  expounding  words  in  mitiori  sensu,       [  *56  ] 

has  for  a  great  while  been  exploded  ;  near  fifty  or  sixty 

years." 

It  was  observed  by  Lord  Mansfield,  in  the  King  (c)  v.  Home, 
"  It  is  the  duty  of  the  jury  to  construe  plain  words  and  clear  al- 
lusions, to  matters  of  universal  notoriety,  according  to  their  obvi- 
ous meaning,  and  as  every  body  else  who  reads  must  understand 
them :  but  the  defendant  may  give  evidence  to  show  they  were  used 
on  the  occasion  in  question  in  a  different  or  qualified  sense.  If  no 
such  evidence  is  given,  the  natural  interpretation  of  the  words,  and 
the  obvious  meaning  to  every  man's  understanding,  must  prevail, 

"  If  courts  of  justice  were  bound  by  law  to  study  for  any  one 
possible  or  supposable  case,  or  sense,  in  which  the  words  used  might 
le  innocent,  such  a  singularity  of  understanding  might  screen  an 
offender  from  punishment,  but  it  could  not  recall  the  words,  or  reme- 
dy the  injury.  It  would  be  strange  to  say,  and  more  so  to  give  out 
as  the  law  of  the  land,  that  a  man  may  be  allowed  to  defame  in  one 
sense,  and  defend  himself  in  another  ;  such  a  doctrine  would  indeed 
be  pregnant  with  the  nimia  suUilitas  which  my  Lord  Coke  so  justly 
reprobates." 

In  the  case  of  Peake  (d)  and  Oldham,  Lord  Mans- 
field *said,  "  After  verdict,  shall  the  court  be  guessing  [  *67  ] 
and  inventing  a  mode  in  which  it  might  be  barely  possible 
for  these  words  to  have  been  spoken  by  the  defendant,  without  mean- 
ing to  charge  the  plaintiff  with  being  guilty  of  murder  ?  Certainly 
not!  Where  it  is  clear  that  words  are  defectively  laid,  a  verdict  will 
not  cure  them  ;  but  where,  from  their  general  import,  they  appear 
to  have  been  spoken  with  a  view  to  defame  the  party,  the  court 
ought  not  to  be  industrious  in  putting  a  construction  upon  them  dif- 
ferent from  what  they  bear  in  the  common  acceptation  and  meaning 
of  them.  I  am  furnished  with  a  case,  founded  in  strong  sense  and 
reason,  in  support  of  this  opinion.     The,  name   of  it  is   Ward  v. 

(c)  1  Cowp.  672,  {d)  Cowp.  277. 


5T  CRimNAL  CHARGE. 

Reynolds^  Pasch.  12  Ann.  B.  R.  and  it  is  as  follows  :  The  defend- 
ant said  to  the  plaintiff,  '  I  know  you  very  well !  How  did  your 
husband  die  V  The  plaintiff  answered,  '  As  you  may,  if  it  please 
God  !'  The  defendant  replied,  'No;  he  died  of  a  wound  you  gave 
him  !'  On  not  guilty,  there  was  a  verdict  for  the  plaintiff ;  and  on 
a  motion  in  arrest  of  judgment,  the  court  held  the  words  were  ac- 
tionable, because,  from  the  whole  frame  of  them,  they  were  spoken 
by  way  of  imputation  ;  and  Lord  C.  J.  Parker  said,  '  It  is  very 
odd,  that  after  a  verdict,  a  court  of  justice  should  be  trying  whether 
there  may  not  be  a  possible  case  in  which  words  spoken 
[  *58  ]  by  way  of  scandal  might  not  be  *innocently  said  ;  where- 
as, if  that  were  in  truth  the  case,  the  defendant  might 
have  demurred,  or  the  verdict  would  have  been  otherwise.'  So 
here,  if  shown  to  be  innocently  spoken,  the  jury  might  have  found 
a  verdict  for  the  defendant ;  but  they  have  put  a  contrary  construc- 
tion upon  the  words  as  laid,  and  have  found  that  the  defendant 
meant  a  charge  of  murder." 

In  the  King  (i)  v.  Watson  and  others,  Mr.  Justice  Buller  observ- 
ed, "  Upon  occasions  of  this  sort,  I  have  never  adopted  any  other 
rule  than  that  frequently  stated  by  Lord  Mansfield  to  juries,  desiring 
them  to  read  the  paper  stated  to  be  a  libel,  as  men  of  common  un- 
derstanding, and  say,  whether,  in  their  minds,  it  conveys  the  sense 
imputed." 

In  Woolnoth  (/)  v.  3Ieadoivs,  it  was  observed  by  Le  Blanc,  J. 
"  That  (after  a  verdict  for  the  plaintiff,)  it  is  not  sufficient  to  show, 
by  argument,  that  the  words  will  admit  some  other  meaning ;  but 
the  court  must  understand  them  as  all  mankind  would  understand 
them :  and  we  cannot  understand  them  differently  in  court  from 
what  they  would  do  out  of  court. 

In  Roberts  (^)  v.  Camlden,  which  was  an  action  for  words  alleg- 
ed by  the  plaintiff  to  contain  an  imputation  of  perjury. 
[  *59  ]        After  a  verdict  for  *the  plaintiff,  on  a  motion  in  arrest 
of  judgment,  on  the  ground  that  the  words  did  not  im- 
pute the  crime  with  sufficient  certainty,  Lord  Ellenborough,  C.  J. 
in  delivering  judgment,  observed,  "  The  question  simply  is — Wheth- 

(e)  2  T.  R,  206.  (/)  5  East,  463.  {g)  9  East,  96. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  59 

er  the  words  amount  to  such  a  charge  ?  that  is,  whether  they  are 
calculated  to  convey  to  the  mind  of  an  ordinary  hearer,  an  imputa- 
tion on  the  plaintiff  of  the  crime  of  purjury.  The  rule  which  at 
one  time  prevailed,  that  the  words  are  to  be  understood  in  mitiori 
sensu,  has  been  long  ag>:  superseded ;  and  words  are  now  construed 
by  courts,  as  they  always  ought  to  have  been,  in  the  plain  and  popu- 
lar sense  in  which  the  rest  of  the  world  naturally  understand  them  " 
[1].  And  in  concluding,  the  same  learned  judge  observed,  that, 
"  without  adverting  to  the  long  bead-roll  of  conflicting  cases  which 
have  been  cited  on  both  sides  in  the  course  of  this  argument,  it  is 
sufficient  to  say,  that  these  words,  fairly  and  naturally  construed, 
appear  to  us  to  have  been  meant,  and  to  be  calculated  to  convey  the 
imputation  of  perjury  actually  committed  by  the  person  of  whom 
they  are  spoken,  and  that,  therefore,  the  rule  for  arresting  the  judg- 
ment must  be  discharged." 

From  these  cases,  containing  the  opinions  of  some  of  the  most 
enlightened  judges  of  their  own  or  any  times,  it  may  be  collected — 

1st.    That  where  words  are  capable  of  tivo  construc- 
tions, *in  what  sense  they  were  meant  is  a  matter  of  fact        [  *60  ] 
to  be  decided  hy  the  jury  [2J. 

2ndly.  That  they  are  to  be  guided  in  forming  their  opinion  by 
the  impression  which  the  words  or  signs  used  were  calculated  to 
make  on  the  minds  of  those  who  heard  or  saw  them,  as  collected 
from  the  whole  of  the  circumstances. 

3dly.  That  such  words  or  signs  will,  after  a  verdict  for  the  plaintiff, 
be  considered  by  the  courts  to  have  been  used  in  their  worst  sense. 

With  respect  to  words,  which  apparently  are  harmless,  and  which 
derive  their  offensive  meaning  wholly  from  extrinsic  circumstances, 
the  preceding  observations  are  applicable  :  the  use  of  such  words 
and  signs  as  do  in  effect  injure  the  reputation  of  an  individual,  are 
as  much  within  the  mischief  as  the  most  open  charges :  the  griev- 
ance is,  the  loss  of  character ;  and  by  what  means  the  wrong  is 

[1]  See  Damarest  v.  Haring,  6  Co  wen  37,  and  Walton  v.  Singleton,  7  Serg. 
and  Rawle  451. 

[2]  See  Van  Vechten  v.  Hopkins,  5  Johns.  R.  221  ;  Dexter  v.  Taber,  12  Id. 
240  ;  McKinly  v.  Eab,  20  Id.  356 ;  Gorham  v.  Ives,  2  Wendell  534  ;  Gibson  v. 
Willittms,  4  Wendell  320. 

Vol.  I.  27 


60  CRIMINAL  CHARGE, 

effected  is  perfectly  immaterial,  either  as  to   the  suffering   of  the 
party,  or  the  policy  of  the  law  providing  him  a  remedy. 

The  (^)  defendant  wrote  a  pamphlet,  called  "Advice  to  the  Lord 
Keeper,  by  a  Country  Parson  ;"  wherein  he  would  have  him  love 
the  church  as  well  as  the  Bishop  of  Salisbury — manage  as  well  as 
Lord  Haversham — be  brave  as  another  lord  ;    and  so  gave  every 

lord  a  character,  *ironically  :  and  so  it  was  set  forth  in 
[  *61  ]     the  information,  and  the  jury  found  him  guilty.     Upon 

motion  in  arrest  of  judgment,  it  was  shown  for  cause,  to 
arrest  judgment,  that  there  was  no  cause  to  charge  the  defendant, 
because  he  said  no  ill  thing  of  any  person  ;  and  all  he  said  was 
good  of  them.  But  to  this  it  was  answered,  and  resolved  by  the 
court,  that  this  was  laid  to  be  ironical;  and  whether  it  was  so  or 
not,  the  jury  were  judges :  they  found  it  so.  And  that  if  this 
were  not  a  crime,  the  defendant  might,  by  contraries,  libel  any  per- 
son [1]. 

Having  thus  inquired  what  general  rules  of  construction  have 
been  adopted  by  the  courts — their  application  to  the  class  of  cases 
where  crime  is  imputed,  and  the  degree  of  certainty  and  partic- 
nlarity  requisite  to  render  such  charges  actionable,  will  next  be 
considered. 

The  charge,  to  be  actionable,  must  in  general,  as  already  stated, 
impute  to  the  plaintiff  an  act  of  a  criminal  nature. 

There  are,  however,  some  exceptions  to  this  rule ;  as  where  trea- 
son is  imputed:  one  species  of  which  offence  consists  m  the' conh 
passing  and  imagining  the  death  of  the  Jcing  ;  which  words  signify 
nothing  more  than  the  purposed   design  of  the  mind,  and   not  the 

carrying  such  design  into  effect  (i). 
[  *62  ]         *In  the  case  of  Sir  John   Sydenham  (Tc)  v.  Man,  the 

words  were,  '*  If  Sir  J.  S.  might  have  his  will,  he  would 
kill  the  king  !"  and  they  were  held  to  be  actionable,  although  they 
referred  to  the  will  only ;  since  it  is  a  great  offence  to  have  such  a 
will. 

{h)  Holt.  R.  425.  (i)  1  Haw.  PI.  G.  86.  {k)  Cro.  J.  407. 

[1]  See  Andrews  v.Woodmanse,  15  Wendell  232,  recognizing  this  principle. 
See  also,  Gibson  v.  Williams,  4  Id.  320  ;  Woolnoth  v.  Meadows,  5  East.  463  ; 
and  Rex  v.  Home,  2  Cowf.  683. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  62 

So  where  the   party  is  charged  with  misprision  (^)  of  felony ; 
as  where  the  defendant  said,  "  He  (m)  knew  of   the  murder  of 
L.,  and  did  not  reveal  it  till  long  after  it  came  to  his  knowledge." 
In  other  cases  it  must  appear, 

I.  That  some  act  was  imputed  by  the  defendant. 

II.  That  such  act  is  of  a  criminal  nature. 

III.  That  it  was  meant  to  be  imputed  to  the  plaintiff. 
I.  That  some  act  was  imputed  by  the  defendant. 

The  imputation  of  an  act  may   be  inferred, 

1st.  Although  the  terms  of  the  communication  be  indirect. 

2dly.  Although  the  act  imputed  be,  in  legal  strictness,  impossible. 

1st.  Where  the  terms  of  the  communicatioa  are  indirect.  It  may 
be  laid  down  a;  a  general  rule,  that  wherever  words  are 
used,  calculated  to  impress  *upon  the  minds  of  the  hear-  [  *Qd  ] 
ers  a  suspicion  of  the  plaintiflf's  having  committed  a  crim- 
inal act,  such  an  inference  may  and  ought  to  be  drawn,  whatever 
form  of  expression  may  have  been  adopted.  And  although  such 
forms  of  expression  may  be  reduced  under  general  heads,  and  ex- 
amples cited  under  each  to  illustrate  this  rule,  yet,  contradictory 
and  inconsistent  as  many  of  the  cases  are,  a  reference  to  them  can- 
not be  considered  as  of  essential  importance  ;  the  rule  itself  being 
so  well  established,  thaf  no  case  in  contradiction  to  it  can  now  be 
considered  as  a  precedent. 

It  may,   however,  be  deemed  proper  to  select  a  few  instances  of 
cases  falling  under  each  division. 

Where  the  terms  of  the  communication  are  indirect,  the  imputa- 
tion of  an  act  committed  may  be  inferred,  where  the  defendant  ex- 
presses a  suspicion  or  opinion,  or  institutes  a  eomparison,  or  deliv- 
ers the  words  as  matter  of  hearsay,  or  by  way  of  interrogation  or 
answer^  or  exclamation,  or  uses  disjunctive  or  adjective  words,  or 
speaks  ironically  ;  or,  in  general,  where  the  statement  virtually  in- 
cludes or  assumes  the  commission  of  the  principal  act,  or  a  strong 
suspicion  of  it. 

From  words  oi suspicion  or  opinion.     Yeoman  (n)  said 
of  Hext,  "  For  my  ground  in  Allerton   "Hext  seeks  my       [  *64  ] 

(/)  Vid.  St.  West.  1.  3  Ed.  1.  c.  9.         (m)  Yel.  154.     1  Vin.  Ab,  446. 
(n)  4  Co.  15.  Poph.  210.     Latch.  176.     3  Buls.  262. 


64  CRIMINAL  CHARGE. 

life  ;  and  if  I  could  find  John  Silver,  I  do  not  doubt  but  with- 
in two  dajs  to  arrest  Ilext  for^suspicion  of  felony."  It  was  ad- 
judged, that  for  the  first  part  of  the  words,  "  for  my  ground  in  Al- 
lerton,  Hext  seeks  my  life,"  no  action  lay,  for  two  reasons  ;  1st,  be- 
cause he  may  seek  his  life  lawfully  and  upon  just  cause,  and  his  land 
may  be  held  of  him.  2dly.  Seeking  of  his  life  is  too  general  ;  and 
for  seeking  only  no  punishment  is  inflicted  by  law.  Buf  for  the  lat- 
ter words,  it  was  adjudged,  tliat  the  action  lay  ;  because  for  suspic- 
ion of  felony  he  shall  be  imprisoned,  and  his  life  drawn  in  ques- 
tion. 

The  defendant  hearing  that  his  father's  barns  were  burnt,  said  (o), 
**  I  cannot  imagine  who  should  do  it  but  the  Lord  Stourton,"  and 
the  words  were  held  to  be  actionable  [1]. 

An  action  lies  for  pubhshing  of  the  plaintiff,  "  I  (^p)  think,  or  I 
dreamed,  he  committed  a  certain  felony  ;"  for  although  the  words 
be  not  directly  affirmative,  the  plaintiff  may,  by  reason  of  them  be 
arrested  upon  suspicion  of  having  committed  that  felony. 

The  defendant  said,  "  He  (^)  is  infected  of  the  rob- 
[  •eS  ]     bery  and  murder  lately  committed,  and  doth  "smell  of  the 
murder ;"  and  the  plaintiff  had  judgment,  afcer  long  de- 
liberation and  argument ;  and  this  decision  was  cited  and  approved 
of  in  a  number  of  subsequent  cases.  (?•) 

So  for  the  words,  "  I  (s)  am  thoroughly  convinced  that  you  are 
guilty,"  &c.  for  "  I  am  thoroughly  convinced,"  is  equal  to  a  positive 
averment :  a  man  only  avers  a  thing  because  he  is  convinced  of  the 
truth  of  it. 

(0)  Mo.  142.      1  Vin.  Ab.  435.  pi.  13. 

(9)   Smith  V.  Wisdome,  Cro.  Eliz.  348.     6  Bac.  Ab.  227. 

((/)  t  Vin.  Ab.  435. 

(r)  3  Bulst.  249.     God.  90.    Hutt.  58.    Cart.  214. 

(s)  Peahe  v.  Oldham,  Cowp.  275. 

[1]  "  My  watch  was  stolen  in  Polly  Miller's  bar;  I  have  reason  to  believe  that 
Tina  M.  took  it,  and  that  her  mother  Polly  concealed  it,"  Miller  v.  Miller,  8 
Johns.  R.  174  ;  "  I  will  venture  any  thing  he  has  stolen  the  book,"  Ney  v.  Otis 
8  Mass.  R.  122  ;  and  expressions  by  the  defendant  that  he  had  reason  to  believe 
that  the  plaintiff  burnt  the  barn.  Logan  v.  Steele,  1  Bibb.  593,  were  held  to  be 
actionable.     See  also  Bornman  v.  Boyer,  3  Binney  515. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  65 

So  for  the  words,  "  If  (0  ^^ou  hadst  thy  rights,  thou  hadst  been 
hanged  for  such  a  felony,"  an  action  lies. 

But  words  of  mere  suspicion  or  opinion,  and  which  do  not  directly 
or  indirectly  impute  any  act,  are  not  actionable  (m). 
In  a  late  case  (.c)  *where  the  defendant  said  of  the  [  *66  ] 
plaintiff,  "  I  will  take  him  to  Bow  street,  on  a  charge  of 
felony  ;"  (innuendo,  that  the  plaintiff  had  been  and  was  guilty  of 
forgery  ;)  it  was  held  that  the  words  were  not  actionable,  as  they 
charged,  not  that  he  was  a  felon,  but  only  suspicion  of  felony.  And 
the  cases  of  Wood  v.  Merrich  (?/),  and  Pollard  v.  Mason  (z), 
were  cited  by  Gibbs,  C.  J.  where  it  was  held  that  the  words  should 
affirm  the  plaintiff  to  be  a  felon  :  that  a  mere  assertion  that  the  de- 
fendant charged  him  on  suspicion  of  felony  was  not  of  itself  action- 
able. 

But  yet  it  is  difficult  to  say  that  an  imputation  of  a  crime  may 
not  be  most  effectually  conveyed  by  such  an  assertion,  and  if  so, 
the  case  embraces  all  the  mischief  consequent  upon  the  most  direct 
allegation  (a) 

(0  Brown! .  3. 

(u)  Com.  Dig.  Action  on  the  case  for  defamation,  F.  13.  and  per  Holroyd,  J. 
in  Hodgson  v.  Scarlett,  1  B  &  A.  243.  Thus  it  has  been  held,  that  for  the 
words,  "  He  deserves  to  be  hanged,"  no  action  lies,  1  Rol.  43.  1.  10.  15.  So 
no  action  lies  for  the  words  "  I  count  thee  to  be  a  witch."  1  Rol.  46.  1.  35. 
So  it  was  held,  that  no  action  lay  for  saying,  "  I  will  prove  thee  to  be  a  thief, 
I  will  prove  it  by  thy  son,  or  send  him  to  the  devil ;"  for  (as  was  said)  the  last 
words  denote  his  doubt.  Cro.  J.  214.  The  last  decision  seems  to  be  of  very 
dubious  authority  ;  for  the  first  part  of  the  words,  will  prove  thee  to  be  a 
thief,  clearly  denote  that  an  act  was  meant  to  be  imputed,  and  the  latter  words 
merely  import  that  the  fact  was  within  the  knowledge  of  the  son,  who  would 
place  himself  in  jeopardy  by  absolving  the  father.  And  see  the  cases  cited 
below,  as  to  adjective  words,  &c.  p.  71. 

(a?)  Harrison  v.  King,  4  Price,  46.  In  the  Exchequer  Chamber,  on  a  writ 
of  error  brought. 

(y)  Roll.  Ab.  p.  73.  pi.  21.  1.  50. 

{z)  lb.  Hob.  381. 

(a)  In  the  case  oi  Davis  v.Noak,  1  Starkie's  C.  372,  where  the  declaration,  in 
an  action  for  a  malicious  prosecution,  alleged  that  the  defendant  charged  the 
plaintiff  with  felony,  it  was  held  to  be  supported  by  evidence,  that  the  defend- 
ant stated  to  the  magistrate  that  he  had  been  robbed  of  specific  articles,  and 


67  CRIMINAL  CHARGE. 

r  •GT  ]  'It  seems  to  be  properly  a  question  for  the  jury,  whe- 
ther the  defendant,  though  he  used  words  of  suspicion 
only,  did  not  mean,  in  effect,  to  impute  the  substantive  crime  to  the 
plaintiff.  In  the  case  of  Tempest  v.  Chambers  (5),  it  appeared 
that  the  defendant,  having  obtained  a  warrant  for  the  apprehension 
of  the  plaintiff,  (which  had  been  improperly  issued  upon  an  inform- 
ation before  the  magistrate  of  facts  which  amounted  to  no  more  than 
a  mere  trespass,)  on  meeting  Salmon,  an  agent  of  the  plaintiff's, 
said,  "  I  have  got  a  warrant  for  Tempest,  I  will  advertise  a  reward 
of  twenty  guineas  to  apprehend  him  ;  I  shall  transport  him  for 
felony."  And  Lord  Ellenborough  left  it  to  the  jury  to  say  whether 
the  defendant  was  speaking  with  reference  to  the  warrant  which  had 
been  improvidently  issued,  or  he  meant  substantively  to  impute  a 
charge  of  felony.     The  jury  found  for  the  plaintiff. 

It  is  observable  that  the  cases  of  Wood  v.  Merrick,  and  of  Pol- 
lard V.  Mason,  which  were  cited  as  conclusive  authorities,  in  the 
Exchequer  Chamber,  in  the  case  of  Harrison  v.  King, 
[  *68  ]  can  *scarcely  be  regarded  as  authorities  at  this  day. 
The  words  in  the  former  case  were,  "  I  charge  you  with 
felony ;"  in  the  latter,  "  I  charge  him  with  felony,  in  taking  money 
out  of  the  pocket  of  J.  S."  In  common  understanding,  the  defend- 
ant would  be  taken  to  assert,  in  the  former  case,  that  the  plaintiff 
was  guilty  of  felony  ;  in  the  latter,  that  he  had  actually  taken 
money  out  of  the  pocket  of  J.  S.  feloniously ;  the  words,  I  charge 
you  with  such  a  fact,  naturally  import  not  merely  that  the  fact  is 
true,  but  that  the  speaker  is  so  convinced  of  its  truth,  that  he  ven- 
tures to  act  upon  it  by  making  a  deliberate  charge. 

From  words  of  comparison.     The  defendant  said,  "  You  (c)  are 
as  great  a  rogue  as  J.  S.,  who  stole  quilts  !" 

So  for  saying,  "  Thou  {d)  art  as  arrant  a  thief  as  any  in  Eng- 
land," an  action  lies. 

that  he  suspected  and  believed,  and  had  reason  to  suspect  and  believe,  that  the 
plaintiff  had  stolen  them.  Per  Lord  Ellenborough,  C.  J.  and  Abbott  and  Hol- 
royd,  Js.  Bayley,  J.  dissent.  But  note  that  Mr.  J.  Bayley  differed  from  the 
rest  of  the  court  merely  on  the  point  of  variance,  and  not  upon  the  general  ques- 
tion, whether  a  malicious  charge,  though  of  suspicion  only,  was  actionable, 
(i)  1  Starkie's  C.  67.      (c)  Upton  v.  Pinfold,  Com.  207.       {d)  Cro.  J.  687. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  69 

So  for  the  words,  "  As  (e)  sure  as  God  governs  the  world,  and 
King  James  this  kingdom,  J.  N.  hath  committed  treason." 

From  words  of  hearsay.  As  where  the  defendant  said,  "  A  (/) 
woman  told  me  that  she  heard  one  say,  that  Meggs,  his 
wife,  had  poisoned  *Griffin,  her  first  husband,  in  a  mesa  [  *69  ] 
of  milk.'*  And  in  case  of  words  so  spoken,  it  seems  to 
be  immaterial  whether  the  speaker  really  heard  the  words  or  not ; 
unless  (^),  as  will  afterwards  be  seen,  at  the  time  of  repeating  them 
he  afford  the  plaintiff  a  cause  of  action  against  the  original  au- 
thor [1]. 

From  words  of  interrogation  (Ji).  As  where  the  defendant  said, 
"  When  (i')  wilt  thou  bring  home  the  nine  sheep  thou  stolest  from 
J.  N.  ?" 

So  an  action  lies  for  saying,  "  Did  (V)  you  hear  that  J.  S.  is 
guilty  of  treason  ?" 

A.  (1}  the  wife  of  B.  was  asked  by  C.  "  Wherefore  will  your 
husband  hang  J.  S.  ?"  she  answered,  "  For  breaking  our  house  in 
the  night,  and  stealing  our  goods."  The  words  were  held  to  be 
actionable,  for  though  they  were  spoken  in  answer  to  a  question, 
they  amount  to  a  charge  of  stealing  goods. 

The  defendant  published  the  following  advertisement : 
"  This  (m)  is  to  request,  that  if  any  *printer  or  other  [  *70  ] 
person  can  ascertain  that  James  Delany,  Esquire  (the 
plaintiff),  some  years  since  residing  at  Cork,  late  Lieutenant  in  the 
North  Lincoln  Militia,  was  married  previous  to  nine  o'clock  in  the 
morning  of  the  10th  of  August,  1799,  they  will  give  notice,  &c., 
and  receive  the  reward."     And  it  was  left  by  Lord  Ellenborough, 

(e)  Sid.  53.  (/)  Golds.  139.  Mo.  408.  Cro.  E.  645. 

(g)  Woolnoth  V.  Meadows,  5  East,  463.  Cro.  J.  162. 406. 
{h)  For  words  of  interrogation  in    general,  see  Mo.  418.  pi.  573.  2  Rol.  Rep. 
165.  Palm.  66.  12  Rep.  134.  Cro.  J.  422.  Keb.  559.  pi.  52. 
(i)  Hunt  V.  Thimblethorpe,  Mo.  418.  1  Vin.  Ab.  429. 
{k)  Earl  of  Northampton's  case,  12  Rep.  134. 
(Z)  Hayward  v.  Naylor,  1  Rol.  Abr.  50. 
(m)  Delany  v.  Jones,  4  Esp.  C.  191. 
[1]  See  note  [1]  page  340  infra. 


70  CRIMINAL  CHARGE. 

C.  J.  to  the  jury  to  say  whether  the  advertisement  imputed  a  charge 
of  bigamy  to  the  plaintiff. 

So  where  the  words  are  spoken  by  way  o?  exclamation :  as, 
"  That  (n)  perjured  villain !" 

From  disjunctive  ivords.  It  has  been  said  that,  where  two  charges 
are  made  disjunctively,  one  of  which  is  actionable  and  the  other  not, 
no  action  lies.  The  defendant  said,  "  Thou  (o)  hast  stolen  my 
mare,  or  didst  consent  to  the  stealing  of  her,"  It  was  held,  that 
the  action  was  not  maintainable,  on  account  of  the  latter  words. 
And  so  where  a  charge  was  imputed  in  the  alternative  ;  as  where 
the  defendant  said  "  Sparkham  did  steal  a  mare,  or  else  Godwin  is 
forsworn !"  Although  it  was  averred  that  Godwin  never  did  swear 
any  such  matter,  the  charge  was  held  to  be  too  indirect  to  bear  an 
action. 

In  the  case  of  Stirley  (p)  v.  Hill^  the  words  were, 

[  *71  ]       "  Thy  brother  was  whipped  about  Taunton  *Cross,  for 

stealing   sheep ;  or  burned  in  the  hand  or  shoulder." 

And  the  court,  after  verdict  for  the  plaintiff,  were  of  opinion,  that 

the  words  did  not  import  any  certain  slander. 

These  decisions,  however,  can  scarcely  be  considered  as  preced- 
ents at  this  day,  for  it  is  clear  that  a  charge  of  felony  may  be  com- 
pletely conveyed  by  such  disjunctive  imputations ;  and  were  they  not 
actionable,  the  legal  consequences  of  slandering  might  in  every  case 
be  easily  avoided. 

The  same  objection  once  prevailed,  where  the  person  and  not  the 
act  was  stated  in  the  disjunctive. 

The  defendant  said,  "  She  (jq^  had  a  child,  and  either  she  or 
somebody  else  made  way  with  it !"  And  three  justices  against  the 
opinion  of  Bridgman,  C.  J.  adjudged,  that  the  words  were  not  ac- 
tionable. But  in  a  subsequent  (r)  case  this  decision  was  overruled  ; 
and  upon  the  same  principle,  no  doubt,  it  would  now  be  held,  that 
words  imputing  a  criminal  act  in  the  disjunctive,  are  also  action- 
able. 

From  adjective  words.  Where  the  words  impute  inclination  only, 
they   are  not  actionable ;  as  to  say,  "  J.  (s)  S.   is  a  murderous 

(n)  Roll.  Ab.  76.     (o)  Cro.  Eliz.  780.    (p)  Cro.  Car.  283.     {q)  Cart.  55,  56. 
(r)  Harrison  v.  Thornborough,  10  Mod.  196.  (s)  Ld.  Ray.  236. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  72 

villain  !"     *But  where  the  participle  is  used,  it  is  other-       [  *72  ] 

■wise  ;  as   to  say,  "  J.  (0  S.  is  a  murthering  villain !" 

The    words    in    the  former  case   importing   an    inclination   only, 

in   thelatter  an   act   done.      So    the   words,  "Dr.  (it)    Sybthorp 

is  robbingthe  church,"  were  held   to  be  actionable  ;  and  to  say 

such  a  person  is  robbing  such  a  man,  or  ravishing  such  a  woman,is 

actionable. 

So,  "  Where  is  that  long  shag-haired,  murthering,  rogue?"  was 
held  to  be  actionable  (a;). 

For  the  words,  "  Traitorous  knave,"  an  action  has  been  held  to 
be  maintainable,  though  not  for  the  words,  *'  Rebellious  knave  ;" 
and  perhaps  this  distinction  may  even  now  be  considered  as  good 
law,  although  many  of  the  nice  subtleties  which  were  formerly  in 
fashion  are  now  disregarded  ;  since,  though  traitorous  be  a  mere 
adjective,  not  impljing  any  act,  yet  the  consideration  that  the  of- 
fence frequently  consists  in  intention  only,  may  well  constitute  this 
case  an  exception  (?/)  to  the  general  rule. 

It  is  laid  down  by  Sir  Edward  Coke  (2),  that  sometimes  adjective 
words  will  maintain  an  action,  and  sometimes  not.  They  are  ac- 
tionable, 

1.  When  the  adjective  presumes  an  act  committed. 

*2.  When  they  scandalize  a  person  in  his   office  or       [  *73  ] 
function,  or  trade,  by  which  he  gets  his  living.     As  if  a 
man  says,  "  That  one  is  a  perjured  knave  !"     There  must  be  an 
act  done,  for  otherwise  he  cannot  be  perjured.     The  words,  "  sedi- 
tious (a)  and  thievish  knave,"  have  been  held  not  actionable. 

And  the  distinction  has  been  frequently  taken,  that  "  thieving 
rogue,"  imports  an  act ;  "  thievish  rogue  (i),"  an  inclination  only. 

So  for  the  words,  "  You  (c)  are  no  thief!"  an  action  Hes,  if  they 
be  spoken  ironically. 

And  next,  the  imputation  of  an  act  may  be  inferred  from  any 

{t)  Cro.  Car.  318. 

(u)  1  Rol.  Ab.  176.  (X)  Cro.  Car.  318 ;  Jo.  326. 

(y)  Cro.  Eliz.  171.  Lev.  90.  (z)  4  Co.  19. 

(a)  4  Rep.  19.  Cro.  J.  65,  66.  2  Bulst.  138.  Ld.  Ray.  236. 

ib)  Dorrell «.  Grove,  Freem.  279.  (c)  1  Vin.  Ab.  430.  pi.  8, 

Vol.  1.  28 


73  CRIMINAL  CHARGE. 

statement,  which  virtually  includes  or  assumes  the  commission  of  the 
principal  act,  or  a  strong  suspicion  of  it. 

The  defendant  said,  "  I  (d)  could  prove  J.  S.  perjured,  if  I 
would  !"  and  the  words  were  held  to  be  actionable  ;  for,  if  true,  J. 
S.  must  have  committed  an  act  of  perjury. 

So  where  the  defendant  said,  "  Thou  (e)  art  a  rogue,  a  runaway 
rogue,  and  didst  run  away  from  Oxford  ;  and  thou  art  a  rogue  of 
record."  The  words  were  held  to  be  actionable  ;  for 
[  *74  ]  if  *true,  the  plaintiff  must  have  been  convicted  of  record. 
The  defendant  said  to  the  plaintiff,  "  In  (/)  Black- 
bull  Yard  you  could  procure  broad  money  for  gold,  and  clip  it  when 
you  had  so  done."  It  was  objected,  that  the  words  were  not  ac- 
tionable, for  they  merely  imputed  a  power,  and  not  an  act.  But 
the  court  held,  that  the  limitation  to  place  implied  an  act,  for  that, 
if  a  power  alone  had  been  meant  to  be  imputed,  the  limitation  to 
place  would  have  been  unnecessary — a  power  to  do  being  the  same 
in  all  places. 

So  in  Rorjie  v.  Powell  (^),  the  defendant  said,  "  You  may  well 
spend  money  at  law,  for  you  can  coin  money  out  of  halfpence  and 
farthings  1"  It  was  held,  that  the  words  were  actionable,  and  im- 
plying an  ACT  ;  for  by  a  mere  2^oiver,  the  plaintiff  could  never  be 
able  to  spend  money  at  law. 

The  defendant  said  of  the  plaintiff.  He  (A)  was  put  in  the  round- 
house, for  stealing  ducks  at  Crowland  ;"  and  judgment  was  given 
for  the  plaintiff.  For  though  the  court  were  at  first  of  opinion,  that 
they  were  bound  by  former  authorities,  and  that  if  judgment  were  to 
be  given  for  the  plaintiff,  many  actions  would  arise  at  ev- 
[  *75  ]  ery  *assizes  in  the  kingdom,  where  the  common  topic  of 
conversation  is,  that  such  a  man  was  sent  to  goal  for  such 
a  crime  ;  yet,  afterwards,  they  changed  their  opinion,  and  held,  that 
the  jury  having  found  the  words  to  have  been  falsely  spoken,  they 
clearly  imported  that  the  plaintiff  had  been  guilty  of  a  crime  :  that 
the  objection  was,  that  the  words  did  not  expressly  allege  that  the 

{d)  1  Vin.  Ab.  406.  pi.  2.  (e)  Sty.  220.  1  Vin.  Ab.  415. 

(/)  Salk.  697.  Speed  v.  Parry.  {g)  Salk.  697. 

(h)  Beavor  Hides,  2  Wils.  300. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  75 

plaintiff  had  stolen  the  clucks,  but  that  words  must  be  taken  accord- 
ing to  common  parlance. 

And  so  in  a  number  of  other  cases,  the  asserting  the  plaintiff  to 
have  been  confined  or  punished  (z)  for  a  certain  offence,  has  been 
held  to  be  actionable,  for  the  imputation,  at  all  events,  throws  strong 
suspicion  upon  him. 

So  where  the  defendant  said,  "  He  (^)  is  under  a  charge  of 
prosecution  for  perjury  ;  G.  W.  had  the  Attorney-General's  instruc- 
tions to  prosecute."  It  was  held  that  the  words  were  actionable,  as 
being  calculated  to  convey  the  imputation  of  perjury. 

So  where  the  defendant  said  of  the  plaintiff,  "  His  (0  character 
is  infamous  ;  he  would  be  disgraceful  to  any  society.  Whoever 
proposed  him  must  have  intended  it  as  an  insult ;  I  will 
pursue  *him  and  hunt  him  from  all  society.  If  his  name  [  *76  ] 
is  enrolled  in  the  Royal  Academy,  I  will  cause  it  to  be 
erased,  and  will  not  leave  a  stone  unturned  to  publish  his  shame 
and  infamy.  Delicacy  forbids  me  from  bringing  a  direct  charge ; 
but  it  was  a  male  child  of  nine  years  old  who  complained  to  me." 

So  where  the  defendant  said,  "  I  (m)  dealt  not  so  unkindly  with 
you,  when  you  stole  my  stack  of  corn." 

The  defendant  said  to  a  husband  in  London,  "  You  (72)  are  a 
cuckoldy  old  rogue  !"  and  the  words  were  held  to  be  actionable,  for 
they  imply  that  the  wife  is  a  whore,  for  which,  by  the  custom  of  the 
city,  she  is  liable  to  temporal  punishment. 

Words  imputing  intention  only  to  commit  crime,  are  not  actiona- 
ble of  themselves,  unless  in  the  case  where  the  intention  is  of  a 
treasonable  nature  (0). 

As,  if  one  say  to  another,  "  Thou  (p)  wouldst  have  killed  me," 
no  action  lies  [1] . 

(j)  Cro.  J.  217. 

{Ji)  Roberts  v.  Camden,  9  East.  93.     (0  Woolnoth  v.  Meadows  5  East.  463, 

{m)  Cooper  v.  Havvkswell,  2  Mod.  58.  (n)  1  Str.  471. 

(o)  Cro.  .1.  471.  "To  impute  evil  inclinations  to  a  man,  which  were  never 
brought  into  action,  is  not  actionable.  Words  to  be  actionable,  should  be  une- 
quivocally so."  Per  Lord  Ellenborough  C.  J.  in  Harrison  v.  Stratton,  4  Esp. 
C.  218. 

(p)  Dr.  Poe's  case,  cited  by  Coke  and  Haughton,  2  Buls.  206.  1  Vin.  Ab. 
440. 

[ll  In  Cornelius  u.  Van   Slyck,  21   Wendell  70,  the  words  "  you  t«7/ steal, 


77  CRIMINAL  CHARGE. 

[  •77  ]  *So  for  the  words,  "  She  (q)  would  have  cut  her  hus- 
band's throat,  and  did  attempt  it,"  an  action  lies ;  be- 
cause an  attempt,  that  is  an  act,  is  charged  ;  but  in  the  same  case 
it  was  held,  that  for  the  first  words,  "  she  would  have  cut  her  hus- 
band's throat,"  no  action  could  be  maintained. 

2dly.  Where  the  act  charged  is,  in  legal  strictness,  impossible. 

Where  a  criminal  charge  is  conveyed  by  the  defendant's  ex- 
pressions, the  liability  to  make  reparation  cannot  be  effected  by  any 
impropriety  in  the  terms  of  the  communication,  whether  legal  or 
grammatical ;  for  the  loss  of  character,  and  its  probable  conse- 
quences, constitute  the  ground  of  action,  without  reference  to  the 
means  employed.  The  contrary  doctrine,  indeed,  at  one  time,  pre- 
vailed. 

It  has  been  holden,  that  if  a  married  woman  say,  "  You  (r)  have 
stolen  mt/  goods,"  the  words  are  not  actionable,  the  words  being 
repugnant ;  for  as  a  married  woman  cannot  have  goods  of  her  own, 
she  cannot  be  robbed  of  any. 

But  in  CharneVs  case  (s),  which  was  earlier  than  the  preceding, 
the  wife  said,  "  3Iy  turkeys  are  stolen,  and  Charnel  hath 
[  *78  ]  stolen  them  ;"  and  *the  same  objection  being  made  in 
arrest  of  judgment,  the  court  said,  "  The  wife  did 
charge  the  plaintiff  with  stealing  her  turkeys  ;  and  if  a  person  who 
had  no  horse  were  to  publish  these  words,  '  J.  S.  hath  stolen  my 
horse,'  the  discredit  would  be  as  great  to  J.  S.  as  if  the  publisher 
had  had  a  horse  ;  for  every  person  who  heareth  the  words  may  not 
know  whether  he  had  a  horse  or  no."  And  in  the  subsequent  case 
of  Stamp  (t)  V.  WJdte,  the  defendants's  wife  said,  "  Thou  art  a 
thievish  rogue,  for  thou  hast  stolen  my  faggots  !"  Although  it  was 
objected  that  the  words  were  without  meaning  ;  for  a  married  wo- 
man could  not  have  property  of  her  own,  yet  it  was  held,  that  the 

and  I  can  prove  it,"  were  held  actionable  on  demurrer,  on  the  ground  that  they 
might  well  be  taken  to  import  a  charge  that  the  plaintiff  had  been  guilty  of 
theft.  It  was  conceded  where  the  words  plainly  import  a  charge  of  mere  inten- 
tion to  do  a  criminal  act,  or  amount  only  to  an  assertion  that  they  are  not  action- 
able. 

{q)  Lane  98.  1  Vin.  Ab.  440.  pi.  9.         (r)  1  Roll.  Ab.  74.  6  Bac.  Ab.  238. 

(s)  Cro.  Eliz.  279.  (/)  Cro.  Jac.  600. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  78 

words  were  actionable  ;  and  it  was  to  be  understood  according  to 
common  intendment,  that  the  defendant  charged  the  plaintiff  with 
stealing  her  husband's  faggots. 

So  where  the  defendant  said,  "  These  (u)  guineas  are  Mr. 
Bendish's  (the  plaintiff's)  ;  and  were  given  me  to  vote  for  him." 
It  was  urged,  on  motion  in  arrest  of  judgment,  that  the  words  are 
insensible  ;  for  that  when  the  plaintiff  has  given  money  to  the  de- 
fendant, it  cannot  be  the  plaintiff's  money  ;  but  judgment  was  given 
for  the  plaintiff. 

The  older  cases,  indeed,  carried  the  doctrine  of  re- 
pugnancy to   a  very  unreasonable  extent  ;    and    *the      [  *79    ] 
courts  arrested  judgments,  not  only  on  the  ground   that 
an  actual  inconsistency  appeared  on  the  face  of  the  record,  but 
even  where    no   inconsistency  appeared,   because   such   might   by 
possibility  exist. 

The  rule,  however,  seems  to  be  now  established,  that  no  inconsis- 
tency or  grammatical  impropriety  will  prevent  the  words  from  being 
actionable,  where  the  intention  to  charge  the  plaintiff  with  the  com- 
mission of  a  crime  plainly  appears. 

II.  The  CRIMINAL  QUALITY  of  the  matter  charged  must  appear 
with  certainty. 

This  may  appear, 

1st.  From  the  use  of  general  terms  of  known  legal  import. 

2ndly.  From  circumstances  explaining  the  meaning  of  terms 
otherwise  doubtful,  or  innocent. 

Srdly.  From  the  mere  description  of  the  circumstances  consti- 
tuting the  offence. 

1st.  From  the  use  of  terms  of  known  legal  import. 

It  seems  at  one  time  to  have  been  understood  that  no  charge  was 
actionable,  when  conveyed  in  terms,  which  did  not  particularize  the 
circumstances  of  the  offence.  So  that  to  say  a  man  was  "  a  traitor 
(w),  or  a  thief,"  did  not  afford  him  a  ground  of  ac- 
tion, *unles3  he  had  sustained  special  damage  from  the  [  *80  j 
words.  And  to  such  an  extent  was  the  nicety  carried, 
that  even  in  cases  where   the  words  did  state  some  of  the  circum- 

(u)   11  Mod.  174.  (w)  Bro.  Action,  sur  le  Cas.  27  H.  8,  11. 


80  CRIMINAL  CHARGE. 

stances,  it  was  held  to  be  incumbent  on  the  plaintiff  to  prove  that 
facts  connected  with  the  charge  were  partially  true,  in  order  to  ren- 
der it  the  more  probable  that  he  might  have  been  placed  in  jeop- 
ardy by  the  accusation.  And  this  affords  reason  to  suppose  that, 
orio'inally,the  only  ground  of  allowing  such  an  action,  without  proof 
of  special  damage,  was,  the  danger  to  which  the  party  was  exposed 
of  a  criminal  prosecution,  to  which  he  could  scarcely  have  been  sub- 
jected by  a  bare  general  charge,  unsupported  by  any  facts  or  cir- 
cumstances which  might  give  it  colour  (a:)' 

Thus,  in  the  case  of  Jacob  {y)  v.  Mills,  it  was  held,  that  for  the 
words,  "  He  hath  poisoned  J.  S.  and  it  shall  cost  me  lOOL  but  I 
will  hang  him,"  no  action  was  maintainable,  because  the  plaintiff  did 
not  aver  (and  of  course  prove)  that  J.  S.  luas  dead  at  the  time  the 
words  were  spoken. 

The  defendant  said,  "  Sir  Thomas  Holt  struck  his 
[  *81  ]  cook  on  the  head  with  a  cleaver,  and  cleaved  *his 
head  ;  the  one  part  lay  on  the  one  shoulder,  and  an- 
other part  on  the  other."  After  verdict  for  the  plaintiff,  judgment 
was  arrested,  upon  the  ground  that  it  did  not  appear  that  the  cook 
was  killed. 

But  in  other  cases,  both  prior  and  subsequent  to  the  former,  simi- 
lar objections  were  overruled.  In  the  case  of  Webb  [z)  v.  Poor, 
the  words  were,  "  I  will  call  him  in  question  for  poisoning  my  aunt, 
and  I  make  no  doubt  to  prove  it."  It  was  moved  in  arrest  of  judg- 
ment, that  the  plaintiff  had  not  averred  that  his  aunt  was  poisoned ; 
but  the  court  would  not  allow  the  objection,  saying,  that  the  plain- 
tiff's credit  was  impeached,  whether  she  was  poisoned  or  not.  And 
the  same  point  was  ruled  in  Talbot  (jci)  v.  Case,  where  it  was  said, 
that  the  death  of  the  person  alleged  to  have  been  murdered,  would 
be  intended,  unless  the  contrary  appeared.  Still,  however,  it  was 
held,  that  if  it  appeared  that  the  person  said  to  have  been  murdered 

(a?)  It  seems  that  formerly  slander  was  not  actionable,  unless  it  occasioned 

special  damage  or  affected  the  life  of  the  party.  2  Vent.  28. 
(y)  Cro.  J.  331.  343.  1  Vent.  117. 

(z)  Cro.  Eliz.  569.  (a)  Cro.  Eliz.  823. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  81 

■was  in  fact  living,  no  action  could  be  maintained.  The  plaintiff  (6) 
showed  in  his  declaration,  that  the  defendant  had  a  ■wife  yet  living  ; 
and  that  he  said  of  the  plaintiff,  "  Thou  hast  killed  my  wife  ;  thou 
art  a  traitor  !"  and  it  was  held  that  no  action  lay  ;  and 
a  *distinction  was  taken  between  the  case  where  the  [  *82  ] 
person  stated  to  have  been  murdered  was  still  alive,  and 
where  he  was  dead;  that,  the  wife  beinir  alive,  no  action  lies,  al- 
though the  defendant  says  that  tho  plaintiff  has  murdered  her  ; 
since  it  appears  that  no  murder  of  her  can  have  been  committed 
nor  the  plaintiff  in  any  jeopardy  ;  and  so  the  words  are  vain  ;  and 
no  scandal  or  damage  to  the  plaintiff. 

To  require  the  plaintiff  to  prove,  that  the  party,  with  whose  mur- 
der he  is  charged,  is  actually  dead,  would  be  highly  unreasonable 
and  inexpedient ;  since  the  slanderer  might  secure  impunity  by  fix- 
ing either  upon  a  fictitious  person  as  the  supposed  victim  of  the 
murder,  or  upon  some  real  person  whose  death  the  plaintiff  might 
not  be  able  to  prove. 

In  the  case  of  Snag  v.  Gee,  (cited  by  Sir  E.  Coke  (c),  in  his 
fourth  report,)  it  appeared  upon  the  record,  that  the  wife,  alleged 
to  have  been  murdered,  was  still  alive  ;  and  the  action  was  held  not 
to  be  maintainable,  because  the  plaintiff  was  not  put  in  jeopardy  by 
the  words. 

It  cannot,  however,  fairly  be  inferred  from  this,  that  the  plaintiff 
is  in  all  cases  precluded  from  recovering,  although  the  person,  al- 
leged to  have  been  murdered,  should  be  still  alive  ;  since 
*che  plaintiff's  life,  or  liberty  at  least,  may  have  been  [  '83  ] 
placed  in  jeopardy  in  consequence  of  the  injurious  report, 
though,  in  fact,  at  the  time  of  pleading,  or  upon  the  trial,  the  de- 
fendant may  be  able  to  prove  the  person  alleged  to  have  been  mur- 
dered to  be  still  living.  The  words,  if  actionable  without  special 
damage,  must  be  so  immediately  when  spoken  ;  and  their  actionable 
quality  must  then  depend  upon  the  fact,  whether  the  hearers  were 
aware  that  the  person  alleged  to  be  murdered  was  really  alive  ;  if 
they  did  not  know  the  fact,  then  all  the  consequences  (the  proba- 
bility of  which  renders  a  charge  of  murder  in  any  case  actionable,) 

(6)  Snag  V.  Gee,  4  Rep.  16.  9  Cro.  Car.  484.  (c)  4  Rep.  16.  9, 


83  CRIMINAL  CHARGE. 

may  follow ;  since,  unfortunately,  several  melancholy  instances  may 
be  cited  where  an  accused  person  has  suffered  for  the  supposed 
murder  of  one  who  survived  him. 

Should  it,  however,  precisely  appear,  upon  the  plaintiff 's  own 
statement,  that  the  person  charged  to  have  been  murdered  was  alive 
when  the  words  were  spoken,  it  would  probably  be  presumed  that 
the  hearers  knew  the  fact. 

The  plaintiff  (d)  declared  that  the  defendant  said  of  him,  "  He  is 
a  base  gentleman,  and  had  three  or  four  children  by  A.  S.  his  maid 
servant ;  and  after  killed  them,  or  caused  them  to  be 
f  •84  ]  *killed;"  and  then  averred,  that  he  never  was  guilty  of 
any  incontinency  with  A.  S.  nor  any  other,  nor  of  any 
such  felony  or  murder.  After  verdict  for  the  plaintiff,  it  was  ob- 
jected, in  arrest  of  judgment,  that  inasmuch  as  he  had  averred  that 
he  never  was  guilty  of  any  incontinency  with  A.  S.  it  was  all  one 
as  if  he  had  averred  that  he  never  had  any  child  by  A.  S.  and 
that  if  he  had  so  averred,  no  action  would  lie  ;  for  then  it  would 
appear  to  the  court,  that  there  was  no  such  thing  in  rerum  naturay 
as  is  supposed  to  have  been  killed.  But  it  was  adjudged  for  the 
plaintiff;  because  it  was  not  specifically  averred  that  he  had  no  child 
by  A.  S.,  but  only  generally,  that  he  was  not  incontinent  with  her. 

And  the  like  degree  of  particularity  has  been  required  in  other 
cases  where  felony  has  been  charged. 

Thus,  for  the  words,  "  Thou  (c)  hast  committed  burglary  in 
breaking  his  house,  and  taking  his  goods."  It  was  held,  that  no 
action  was  maintainable  ;  it  being  uncertain,  as  no  person  was 
named,  whose  house  and  goods  were  meant.  And,  upon  the  same 
principle,  it  was  held,  that  a  general  charge  of  forgery  (/ )  was 
not  actionable,  without  reference  to  some  particular  deed, 
[  *85  ]  *instrument,  or  other  subject  matter.  So  it  was  held, 
that  a  general  charge  of  subornation  (^)  of  perjury  was 
not  actionable,  unless  it  appeared  that  the  perjury  had  been  com- 
mitted. 

These  doctrines  have,  however  been  long  exploded  ;  and  the  rule 

(rf)  1  Vin.  Ab.409.  pi.  4.  Poph.  187.  Jo.  141.  Lat.  159.  Cart.  55.  Comb.  132. 
(e)  Brown  v.  St.  John,  1  Rol.  Ab.  71.  {/)  3  Leon.  231. 

{g)  6  Mod.  200. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  85 

seems  now  to  be  perfectly  established,  that  an  action  is  maintain- 
able for  a  general  imputation  conveyed  in  apt  terms. 

The  establishment  of  this  rule  necessarily  defeated  another 
nicety,  vrbich  has  been  alluded  to  as  having  formerly  been  counte- 
nanced by  the  courts,  namely,  that  when  the  charge  described  any 
circumstance^  of  the  offence,  it  was  incumbent  upon  the  plaintiff 
to  show  the  existence  of  such  particulars  as  might  serve  to  give 
color  to  the  defendant's  imputation,  since  it  would  be  absurd  to 
allow  a  remedy  against  general  charges  where  no  color  could  be 
shown,  and  to  deny  it  where  the  imputation  was  equally  prejadicial, 
because  it  contained  particulars,  which  particulars  the  plaintiff 
might  be  equally  unable  to  prove. 

As  for  instance,  if  for  the  words,  "  you  committed  a  murder," 
the  plaintiff  be  entitled  to  recover,  it  would  be  highly  unreasonable 
in  an  action  for  the  words,  "  You  murdered  J.  S."  to  require  him 
to  prove  that  such  a  person  as  J.  S.  had  existed,  but  was  dead  at 
the  time  the  words  were  spoken. 

*It  may  next  be  proper  to  refer  to  a  few  cases  where  [  *86  ] 
general  words  have  been  held  to  be  actionable. 

An  action  has  been  held  to  be  maintainable  for  the  words  traitor 
(A),  murderer,  (i),  thief,  (k)  sheepstealer  (/). 

For  charging  another  with  felony  (m),  perjury  (n),  subornation 
of  perjury  (o),  forgery  (;>),  robbery  ((/.) 

It  was  once  held,  that  to  call  another  a  pick-pocket  (r),  did  nob 
amount  to  a  charge  of  felony  ;  this  decision  has,  however,  been 
overruled  (s). 

(A)  Dal.  17.  Bro.  Ac.  sur  le  Cas.  pi.  2.  27  H.  8.  14.  [?]  Mo.  29. 

{k)  But  the  term  thief  will  not  be  actionable,  if  it  appear  from  the  context 
that  it  was  not  used  in  a  felonious  sense.  Should  this  appear  on  the  p  laintifTs 
own  showing,  he  would  be  nonsuited.  See  Thompson  v.  Bernard,  1  Camp, 
48.  Christie  v.  Powell,  Peake's  C.  4.  Otherwise  it  will  be  incumbent  on  ihe 
defendant  to  show  that  the  word  was  not  used  in  a  felonious  sense.  Vide  in- 
fra, Evidence  in  Defence. 

(J)  3  Buls.  303.  {m)  Jo.  32.  Cro.  Car.  2TG.  Poph.  210.  Sty.  235. 

(n)  Ow.  G2.  Noy,  61.  1  Vin.  Ab.  405. 

(0)  Cro.  Eliz.  308,  Cro.  J.  1.58.  1  Rol.  Ab.  41. 

(p)  Jones  V.  Heme,  2  Wilo.  87.  (q)  Cro.  J.  247. 

(r)  3  Salk.  325.  («)  11  Mod.  255. 

Vol.  I.  29 


86  CRIMINAL  CHARGE. 

Whilst  the  statutes  against  witchcraft  remained  in  force,  it  seema 
that  the  term  witch  was  not  actionable,  unless  it  was  coupled  with 
some  act  of  witchcraft ;  the  cases,   however,  relating  to 
[  '87  ]       this  *offence,  are  so  inconsistent  with  each  other,  and 
with  any  settled  principle,  as  to  appear  incapable  of  af- 
fording any  illustration  of  the  subject  of  this  treatise. 

To  charge  one  with  having  cozened  another,  has,  in  a  great  num- 
ber of  cases,  been  held  to  be  too  indefinite  to  support  an  action. 
The  defendant  said,  "  Thou  {f)  art  a  cozening  knave,  and  hast 
cozened  me  out  of  500Z."  and  it  was  held  that  no  action  lay. 

So  to  accuse  (u)  another,  of  cheating  is  too  general  to  support  an 
action  [1]. 

So  to  say,  he  (a;)  is  a  rogue,  varlet,  or  the  like,  is  not  actiona- 
ble [2].  So  to  say,  "  Thou  (?/)  art  a  common  filcher,  a  companion 
of  cut  throats,"  &c. 

So  to  say,  "  He  (z)  is  a  bloodsucker,  and  not  fit  to  live  in  the 
commonwealth ;  and  his  child,  not  born,  is  bound  to   curse  him." 

2dly.  The  criminal  quality  of  the  act  imputed  may  appear  from 
circumstances  explaining  the  meaning  of  words  doubtful  or  innocent. 

In  consideration  of  law,  that  is  certain  which  can  be  so  rendered : 
it  is,  therefore,  of  no  importance  whether  the  terms  used 
[  *88]      be  doubtful,  or  even  'apparently  innocent,  provided  it 
can  be  shown  that  they  could  and  did  convey  the  offen- 
sive meaning  which  forms  the  ground  of  complaint. 

An  imputation  of  being  forsworn  is  the  most  common  instance  of 
cases  falling  under  this  division,  and  has  given  rise  to  a  numerous 
class  of  decisions  [  a  a  ] . 

(0  Hutt.  13. 1  Vin.  Ab.  427.  pi.  9,  3  Lev.  171,  Cro.  Eliz.  95.  Ow.  47.  Buls. 
172.  Show.  181.  God.  284.  Cro.  J.  427.  (m)  2  Salk.  694. 

(*)  4  Rep.  15.  b.  Ld.  Ray.  1417. 

(y)  Cro.  Eliz.  554.  (z)  Noy,  64. 

[11  See  Chase  v.  Whitlock,  3  Hill  139  ;  Stevenson  v.  Hayden,  2Mass.  R. 
406. 

[2]  See  Caldwell  v.  Abbey,  Hardin's  R.  530. 

[a  a]  Where  the  words  were  "  Mr.  H.'s  oath  is  not  to  be  taken,  for  he  has 
been  a  forsworn  man  ;  I  can  bring  people  to  prove  it,  and  they  that  know  him 
will  not  sit  in  the  jury-box  with  him,"  it  was  held  that  they  were  not  actiona- 


CIVIL  REMEDY— ACTIONABLE  WORDS.  88 

It  has  been  held,  that  to  accuse  another  of  having  forsworn  him- 
self, generally,  is  actionable  (a)  ;  but  it  seems  to  be  now  perfectly 
settled,  that  the  term  is  not  actionable,  unless  it  appear  from  the 
accompanying  circumstances  to  have  been  meant  and  understood  of 
such  a  forswearing  as  would  constitute  the  offence  of  perjury  (b).  [1] 

Thus,  to  say  (c),  "  A.  B.  being  forsworn,  compounded  the  pros- 
ecution," is  actionable,  for  an  indictable  forswearing  must  have  been 
intended  [2]. 

So  the  term  "  forsworn"  is  actionable  when  reference  is  made  to 
a  court  (cf)  in  which  false  swearing  would  amount  to  perjury. 

ble  without  averments  to  show  that  they  were  spoken  in  reference  to  the  conduct 
of  the  plaintiff  as  a  juror.     Hall  v.  Weedon,  8  D.  &  R.  140. 

In  an  action  of  slander  for  words  charging  a  party  with  being  forsworn,  the 
words  though  not  actionable  per  se,  may  be  rendered  so  by  alleging  and  proving  a 
colloquium,  that  the  words  were  spoken  in  reference  to  testimony  given  by  the 
plaintiff  in  an  action  depending  in  a  judicial  tribunal,  in  which  the  plaintiff  was 
sworn  as  a  witness.  It  was  formerly  held  necessary  to  the  maintenance  of  such 
an  action  that  it  should  be  alleged  and  proved,  that  the  court  in  which  the 
trial  was  had  possessed  jurisdiction  of  the  subject  matter,  and  had  authority 
to  administer  an  oath  ;  and  that  the  evidence  given  by  the  plaintiff  was  material 
to  the  issue  on  trial.  Now  it  is  held  otherwise.  The  authority  to  administer 
the  oath,  and  the  materiality  of  the  testimony  in  respect  to  which  the  charge  is 
made,  will  be  presumed  until  the  contrary  be  shown.  Whether  such  presumption 
can  even  be  re!>utted  by  proof  may  well  be  doubted,  for  if  the  charge  would 
naturally  be  understood  by  the  hearers  to  impute  the  crime  of  perjury,  and  there 
be  nothing  to  induce  the  belief  that  the  swearing  spoken  of  was  extra-judicial, 
or  that  the  evidence  was  immaterial,  no  reason  is  perceived  why  the  presump- 
tion should  be  allowed  to  be  rebutted  by  proof.  The  intent  of  the  defendant, 
unless  communicated  to  the  hearers,  does  not  affect  the  question.  It  is  believed 
that  there  is  no  decision  by  the  English  Courts,  requiring  proof  of  the  materi- 
ality of  the  evidence  charged  to  be  false,  in  order  to  sustain  the  action.  On  the 
trial  of  an  indictment  for  perjury  such  proof  is  indispensable.  See  the  follow- 
ing cases  ;  Coons  V.  Robinson,  3  Barbour's  Law  R.  655  ;  Jacobs  v.  Tyler  3 
Hm  572;  Price  v.  Power  12  Wendell,  502  ;  16  Wendell,  451.  S.  C.  in  error  ; 
Butterfield  v.  Buffam,  9  New  Hamp.  R.  156  ;  Coleman  v.  Godwin,  3  Doug. 
91  ;  Dalrymple  v.  Lofton,  2  McMullan  So.  Car.  R.  112  ;  Harris  v.  Purdy, 
1  Stewart's  Alab.  R.  231. 

(a)  2  Buls.  40. 

(6)  4  Rep.  15.  2  Buls.  150.  Holt  v.  Scholefield,  6.  T.  R,  091. 

(c)  Cro.  Eliz.  609.  2  Rol.  Rep.  410. 

[1]  See  note  [1]  p.  22,  ante.  [d)  Cro.  Eliz.  720.  1  Vin.  Ab-  406.  pi  b-  7. 

[2]  "  You  swore  to  a  lie,  for  which  you  now  stand  indicted,"  held  actionable. 
Pelton  V.  Ward,  3  Caines  73. 


88  CRIMINAL  CHARGE. 

The  defendant  said,  "  Arthur  (e)  Colomo  is  a  forsworn  man,  and 
hath  taken  a  false  oath  in  his  deposition  at  Tiverton,  where  he  ^Yal:ed 
his  law  against  me  ;"  and  the  plaintiff  had  judgment,  the 
[  *89  ]  'forswearing  appearing  by  the  description  to  have  amount- 
ed to  perjury. 

So  to  say,  "  Thou  wert  forsworn  at  such  a  trial  (/),"  (with  refer- 
ence to  a  trial  where  the  offence  of  perjury  might  have  been  commit- 
ted) is  actionable. 

Where  reference  is  made  to  a  particular  court,  the  Imputation  13 
actionable,  if  perjury  could  have  been  committed  there.  In  such 
case,  however,  it  is  incumbent  on  the  plaintiff  to  show  that  the  per- 
jury could  have   been  committed  there  [1]. 

The  defendant  said,  "  Thou  (^)  vrert  forsworn  at  Whitechurch 
court,"  and  the  words  were  held  not  to  be  actionable,  because  it  did 
not  appear  that  Whitechurch  "ourt  was  a  court  of  record. 

So  it  was  held,  that  no  action  lay  for  saying,  "  He  (A)  has  for- 
sworn himself  in  Leake  court,  without  shewing  it  to  be  a  court  which 
could  compel  the  taking  of  an  oath. 

It  is  not  necessary  that  the  forswearing  should  be  shown  to  have 
been  intended  of  a  perjury  within  the  statute  of  Elizabeth,  for  per- 
jury is  an  offence  punishable  at  Common  Law(i).  So, 
[  *90  ]  although  Ecclesiastical  Courts  are  not  *mentioned  in  the 
statute  of  Elizabeth  against  peijury,  yet  an  action  lies  for 
imputing  a  forswearing  in  an  Ecclesiastical  Court  [2],  The  defend- 
ant said,  "  Thou  (^  )  art  a  forsworn  knave,  and  I  will  prove  thee  to  be 

(e)  Cro.  J.  204.  (/)  Cro.  Car.  378.  Lut.  1292. 

(g)  Cro.  Car.  378,  (A)   1  Rol.  Ab.  -39.  pi.  7.  6.  Bac  Ab.  207. 

(i)  1  Rol.  Ab  49.  (j)  Shaw  v.  Thompson,  Cro.  Eiiz.  609. 

[1]  Although  the  plaintiff  had  omitted  to  aver  jurisdiction  in  the  court  before 
which  the  oath  was  taken,  the  declaration  was  held  sufficient  on  motion  in  arrest 
after  verdict ;  Niven  v.  Munn,  13  Johns.  R.  48.  So  "  you  swore  false  mcoMr^," 
was  held  sufficient  without  a  colloquium  on  like  motion  ;  Hamilton  v-  Dent,  1 
Hayw.  (N.  C.)  R.  IIG;  and  under  like  circumstances  the  words  "  you  swore 
false  at  the  trial  of  your  brother  John,"  were  held  sufficient ;  Fowle  v.  Robbins, 
12  M^ss.  R.  490- 

[2J  In  Chapman  r.  Gillet,  2  Conn.  R.  40.  it  was  held  that  an  action  lay  for 
charging  the  plaintiff  with  ;jcr;'?f?-y,  in  giving  testimony  before  a  church  judica- 
tory in  Connecticut :  so  held  by  six  judges — three  dissenting. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  90 

forsworn  in  the  Spiritual  Court ;"  and  it  -was  held  that  the  action 
well  lay  ;  for  the  Ecclesiastical  Court  is  a  judicial  court,  and  well 
known  {Jc). 

To  say,  "  Thou  (Z)  wast  forsworn  before  my  Lord  Chief  Justice, 
in  evidence,"  is  actionable. 

So  to  say  that  another  is  forsworn  before  a  Justice  (m)  of  the 
Peace  is  actionable  ;  or  before  such  a  person,  naming  him,  provided 
it  can  be  shown  with  certainty,  that  the  person  so  named,  was  a 
Justice  of  the  Peace. 

The  defendant  said,  "  Thou  (w)  art  a  forsworn  knave  !"  The  plain- 
tiff asked,  "  Where  ?"  The  defendant  replied,  "  In  Ilston  court ;" 
and  the  words  were  held  to  be  actionable,  the  court  alluded  to  being  a 
Court  Leet,  where  the  offence  might  have  been  committed. 

*'  Thou  (  0  )  art  a  forsworn  man  ;  I  will  teach  "thee  the      [  *91  ] 
price  of  an  oath,  and  will  set  thee  on  the  pillory."     And 
the  words  were  held  to  be  actionable,  because  the  defendant  showed 
that  he  meant  to  impute  a  perjury,  for  which  the  plaintiff  ought  to 
stand  in  the  pillory  [a  a] . 

The  injurious  import  of  the  term  stealing,  has  undergone  much 
discussion. 

In  Baker  (p)  v.  Pierce,  the  words  were,  "  You  stole  my  boxwood, 
and  I  will  prove  it."  Upon  motion  in  arrest  of  judgment,  a  long 
string  of  cases  was  cited  for  the  defendant,  in  which  the  term  steal- 
ing had  not  been  considered  as  actionable  ;  as  where  the  defendant 
said,  "  You  (q)  are  a  thief  and  stole  my  timber."  "  You  (  r  )  are 
a  thief,  and  stole  my  corn,  hops  and  apples,"  "  You  (s)  stole  timber 
out  of  my  yard."     "  You  ( t  )  stole  corn  out  of  my  yard."     All  of 

(k)  But  it  has  been  held  in  a  lale  case,  that  an  indictment  does  not  lie  in  re- 
Bpect  of  a  false  oath  before  a  surrogate.  R.  v.  Foster,  Russ.  and  Ry.  C.  C.  R., 
459.  But  now  see  the  Stat.  4.  G.  4.  c.  76.  s.  14. 

(/)  Le.  127.  (m)  Gurneth  v.  Derry,  3  Lev.  16G.  4  Co.  17. 

in)  Cro.  Eliz.  720.  (o)  1  Yin.  Ab.  407,  pi.  11. 

[a  a]  To  say  "he  has  defrauded  a  mealman  of  a  roan  horse,  is  not  action- 
able, it  not  beingr  said  to  have  done  by  a  false  pretence,  or  in  any  criminal  way." 
Richardson  v.  Allen,  2  Chitt.  C.  T.  M.  652. 

{p)  6  Mod.  23.  {q)  Cro.  J.  65.  (r)  2  Brownl.  280. 

is)  Cro.  J.  673.  All.  31.  Hob.  331.  Sty.  231.  (/)  Hob.  406. 


91  CRIMINAL  CHARGE. 

^vhich  had  been  decided  upon  the  ground,  that  unless  the  additional 

words  show  that  a  charge  of  felony  was  intended,  they  are  to  be 

taken  in  their*  mildest  acceptation. 

For  the  plaintiff,  it  was  contended,  that  "  You  have  stolen  my 
timber,'"  is  actionable  ;  for  it  must  be  felled  and  severed 

[  *92  ]       from  the  stock,  before  *it  is  timber,  according  to  the  dis- 
tinction made  in  the  old  hexameter  : — 
"  Arbor  dura  crescit,  lignum  dum  crescere  nescit  (^)." 

Holt,  C.  J.  said,  "  The  opinions  of  later  times  have  been  in  many 
instances  different  form  those  of  former  days  in  relation  to  words  ; 
for  formerly  there  has  been  a  dijBference  taken  between  saying, 
'  Thou  art  a  thief,  and  hast  stolen  my  wood ;'  and, '  Thou  art  a  thief, 
for  thou  hast  stolen  my  wood.'  And  judgments  have  gone  both 
ways ;  but  later  opinions  make  no  difference  if  the  words  be  spoken 
at  the  same  time.  And  these  are  scrambhng things  that  have  gone 
backwards  and  forwards,  and  the  idle  people  in  the  country,  that 
privately  cut  and  carry  away  coppice  wood,  are  in  common  parlance, 
called  '  woodstealers.  '  "  And  he  said,  that,  "  Stealing,  and  fe- 
loniously stealing,  are  not  the  same  ;  for  in  common  parlance,  steal- 
ing does  not  always  import  '  felony  ;'  as  to  cut  and  carry  away  furze 
is  a  stealing,  but  not  a  felonious  stealing." 

But  Powell,  J.  said,  he  always  took  it,  that  stealing,  ex  vi  termi- 
ni, did  import  felony.  And  afterwards,  by  the  opinion  of  the  whole 
court,  the  plaintiff  had  judgment,  on  the   ground,  as  stated  in  the 

report,  of  all  the  later  authorities  (w). 
[  *93  ]  *From  this,  and  the  later  decisions  upon  this  subject, 

it  seems,  that  the  term  stealing  takes  its  complexion  from 
the  subject  matter  to  which  ic  is  applied,  and  will  be  considered  aa 
intended  of  a  felonious  stealing,  if  a  felony  could  have  been  commit, 
ted  of  such  subject  matter  [1]. 

(t)  1  Rol.  Ab.  70.  pi.  47.  (u)  6  Mod.  23. 

[1]  In  Dexter  u,  Taber  12  Johns.  R.  239.  the  words  were,  "  You  are  a 
thief;  you  stole  hoop  poles  and  saw  logs  from  off  Delancey's  and  Judge 
Myer's  land."  The  judge  instructed  the  jury  that  if  the  defendant  meant  to 
charge  the  plaintiff  with  taking  timber  already/  cut  into  poles  and  logs,  the  words 
were  actionable  ;  but  if  he  only  meant  to  charge  the  cutting  and  carrying 
away  timber  with  a  view  to  convert  it  into  poles,  &c.  the  words  were  not  ac- 
tionable.    The  jury  found  for  the  defendant,  and  the  Court  refused  to  set  aside 


CIVIL  REMEDY—ACTIONABLE  WORDS.  93 

In  modern  construction  and  practice  little  doubt  can  arise  upon 
these  niceties  which  appear  in  former  times  to  have  afforded  abun- 
dant occupation  to  the  courts.  If,  from  the  plaintiff's  declaration,  it 
appear,  that  the  charge  of  stealing  could  not,  from  its  application, 
have  been  meant  to  impute  a  felonious  stealing  :  as  if,  for  example, 
the  defendant  had  said,  "  You  stole  an  acre  of  my  land  ;"  the 
statement  would  be  held  to  be  bad  upon  demurrer  ;  if  it  appeared 
upon  the  trial  that  the  term  had  been  applied  in  a  sense  not  felonious, 
the  plaintiff  would  be  nonsuited  ;  and  finally,  if  after  verdict  for  the 
plaintiff,  it  appeared,  that  the  terra  as  used  was  capable  of  a  felonious 
sense,  the  verdict  would  be  supported. 

This  doctrine  is  applicable  to  every  other  case  where  doubtful 
words,  or  even  those  apparently  innocent,  derive  a  criminal  quality, 
either  from  context  or  collateral  circumstances. 

The  defendant  said,  "  Thou  (x)  art   a  clipper,  *and       [  *91  ] 
shall  be  hanged  for  it ;"  and  the  court,  after  a  verdict 
for  the  plaintiff,  said,  that  the  words  should  not  be  taken  to  mean  a 
clipping  of  clothes,  but  a  clipping  of  money,  for  which  the  plaintiff 
might  be  hanged. 

So  for  the  words,  "  Thou  (?/)  art  a  clipper,  and  thy  neck  shall 
pay  for  it,"  an  action  was  held  to  be  maintainable;  for  by  the  sub- 
sequent words  it  could  not  be  intended  of  any  other  clipping  than  of 
money. 

So  when  the  statutes  against  witchcraft  were  in  force,  the  defend- 
ant said,  "  Thou  (2)  art  a  witch,  and  I  will  make  thee  suffer  for  a 
witch."  After  verdict  for  the  plaintiff,  it  was  contended,  that  the 
words  were  not  actionable  ;  that  it  had  been  many  times  adjudged 
that  witch  alone  is  not  actionable  ;  and  that,  "  I  will  make  thee 
suffer  for  a  tvitch"  are  not ;  for  it  is  not  said  suffer  death  ;  that  it 
might  be  intended  of  a  citation  in  the  Spiritual  Court,  which  was  the 

the  verdict ;  Spencer  J.  dissented.  See  his  dissenting  opinion  and  also  Stokes 
V.  Stuckey,  1  McCord,  562, 

In  Findlay  v.  Bear,  8  Serg.  &  Rawle  571,  it  was  held  that  a  charge  of  having 
stolen  a  dog  is  not  actionable  ;  for  the  reason  that  a  dog  is  of  that  kind  of  prop- 
erty of  which  felony  cannot  be  committed;  and  yet  for  killing  a  dog  without 
good  cause,  an  action  lies.     See  Hinckley  v.  Emerson,  4  Cowen  351. 

(a?)  Walter  v.  Beaver,  3  Lev.  166.     2  Jo.  235.     Cro.  J.  255.  276.  1  Lev.  155. 

(y)  3  Lev.  166.  (2)  3  Lev.  394. 


94  CRIMINAL  CHARGE. 

usual  vraj  belore  the  statute;  or  it  might  be  by  ducking  in  the 
water  as  the  common  people  used  to  try  those  suspected  of  witch- 
craft. But  it  was  answered  by  Rokesby  and  Neville,  Justices,  that 
the  words  shall  be  taken  as  they  are  usually  understood  among 
neighbors  in  the  country  ;  to  suffer  is  intended  to  suffer 
[  *95  ]  death  ;  as  they  usually  *say,  How  many  suffer  at  this 
Assizes  ?  which  is  intended,  suffer  death.  And  there- 
to Treby,  C.  J.  after  it  had  been  twice  moved,  inclined.  And 
at  last  judgment  was  given  for  the  plaintiff  by  Treby,  C.  J.,  and 
Rokesby  and  Neville,  Js. ;  Powell,  J  being  of  a  contrary  opinion, 
because  words  shall  be  taken  in  mitiori  sensu,  and  the  Avord  suffer  is 
wholly  uncertain  what  manner  of  suffering  was  intended. 

The  defendant  (a),  speaking  of  the  death  of  one  Daniel  Dolly, 
said  to  the  plaintiff,  "  You  are  a  bad  man,  and  I  am  thoroughly 
convinced  that  you  are  guilty  ;  and  rather  than  you  should  want  a 
hangman,  I  would  be  your  executioner."  After  verdict  and  judg- 
ment for  the  plaintiff,  the  defendant  brought  a  writ  of  error  in  the 
court  of  King's  Bench,  assigning  as  two  grounds  of  error, — 

1st.  That  the  words  were  not  in  themselves  scandalous. 

2dly.  That  they  did  not  become  so  by  reference  to  the  death  of 
D.  D. 

Lord  Mansfield,  in  afiirming  the  judgment,  observed,  "  It  is  ar- 
gued that  there  are  many  innocent  ways  by  which  one  man  may 
occasion  the  death  of  another  ;  therefore,  the  words, 
[  *96  ]  '  guilty  of  the  death,'  do  not  in  themselves  "necessarily 
import  a  charge  of  murder  ;  and  consequently,  as  no 
particular  act  is  charged  (which  in  itself  amounts  to  an  imputation 
of  a  crime)  the  words  are  defectively  laid.  What !  when  the  de- 
fendant tells  the  plaintiff  that  he  has  been  guilty  of  the  death  of 
a  person,  is  not  that  a  charge  and  imputation  of  a  very  foul  and 
heinous  kind  ?  Saying  that  such  a  one  is  the  cause  of  another's 
death,  as  in  the  case  in  2  Buls.  10, 11,  is  very  different ;  because 
a  physician  may  be  the  cause  of  a  man's  death,  and  very  innocent, 
ly :  but  the  word  guilty  implies  a  malicious  intent,  and  can  be 
applied  only  to  something  which  is  universally  allowed  to  be  a  crime. 

(a)  Peake  v.  Oldham,  Cowp.  275, 


CIVIL  REMEDY—ACTIONABLE  WORDS.  96 

But  the  defendant  does  not  rest  here :  on  the  contrary,  in  order 
to  explain  his  meaning,  he  goes  on  and  says,  '  and  rather  than  you 
should  be  without  a  hangman,  I  will  hang  you.'  These  words 
plainly  show  what  species  of  death  the  defendant  meant,  and  there- 
fore in  themselves  manifestly  import  a  charge  of  murder." 

Where  the  words  merely  charge  the  plaintiff  with  being  deserving 
of  punishment,  great  doubt  seems  to  have  been  entertained  wheth- 
er they  are  actionable,  and  there  are  many  authorities  both  ways. 

It  has  been  held,  that  an  action  lies  for  sajin^,  "  If 
(b)  you  had  your  deserts,  you  had  been  *hanged  be-     [  *97  ] 
fore  now."     For  the  court  said,  it  should  be  intended  to 
convey  an  imputation  of  an  offence  for  which  the  penalty  of  death 
was  due. 

So  the  words,  "  He  (c)  hath  deserved  to  have  his  ears  nailed 
to  the  pillory,"  were  adjudged  to  be  actionable.  But  for  the  words, 
"  Thou  ((^)  art  a  scurvy  bad  fellow,  and  hast  done  that  for  which 
thou  deservest  to  be  hanged  ;"  it  was  held,  that  no  action  could  be 
mamtained.  So  it  has  been  held,  that  the  words,  "  Thou  (e) 
shouldest  have  sate  on  the  pillory,  if  thou  hadst  thy  deserts,"  were 
not  actionable,  because  too  general. 

As  a  greater  degree  of  precision  has  been  required  in  modern 
times  than  formerly,  the  cases  last  cited  may,  perhaps,  be  considered 
as  the  better  authorities. 

If,  however,  the  words  import  a  conviction  for  some  offence,  ifc 
fieems  they  are  actionable. 

The  defendant  said,  "  You  (/)  are  a  branded  rogue,  and  have 
held  up  your  hand  at  the  ba'r." 

It  was  held,  that  the  words  were  actionable,  since  they  imply  that 
the  plaintiff  was  branded  according  to  the  statute  (.^). 

So  words  or  signs  apparently  innocent  or  unintelligible,  may,  by 
■explanatory  circumstances,  become  actionable.     The  de- 
fendant^ said  of  the  *plaintiff,  "  He  (J{)  is  a  healer  of    [  *98  ] 
felons;"  and  the  words  having  been  spoken  in  one  of  the 

ih)  Cro.  Eliz.  62.  ^,^  Cro.  Eliz.  384. 

\%  \T^.'"'"  '''•  ''  '■  <^^  ^^"-  ^^-  ^''-  P'-  10.  Mo.  243, 

{^^  ^\  3^-  ig)  I  Jac.  c.  7. 

(A)  Hob.  126.  Cro.  Eliz,  250.  Cart.  214. 

Vol.  I.  50 


98  CRIMINAL  CHARGE. 

western  counties,  wlierein  "  a  healer  of  felons"  signifies  a  concealer 
of  felons,  were;  thus  explained,  held  to  be  actionable. 

So  the  words,  "  He  (i)  is  mainsworn/'  were  held  to  be  action- 
able, as  published  in  a  part  of  the  kingdom  where  they  were  under- 
stood to  convey  a  charge  of  perjury. 

So,  generally,  in  regard  to  words  spoken  in  a  foreign  language, 
the  only  question  is,  whether  they  were  understood  by  the  hearers 
in  an  actionable  sense  ?— If  so  understood,  the  mischief  is  effected, 
and  the  cause  of  action  complete  (^). 

Where  the  words  are  spoken  in  the  Welsh  language,  but  in  an 
English  county,  it  must  appear,  that  the  hearers  understood  Welsh  ; 
for  otherwise  the  court  will  not  intend  that  any  there  understood 
the  Welsh  tongue  ;  and  then  it  was  not  any  slander  any  more  than 
if  any  one  spoke  slanderous  words  in  French  or  Italian  ;  in  which 
case  no  action  will  lie,  unless  it  be  averred,  that  some  one  there  (0 
understood  the  language  in  which  the  alleged  slander  was  conveyed. 
.And  as  doubtful  or  apparently  innocent  words  may 
[  *99  ]  *by  circumstances,  be  shown  to  be  actionable  ;  so  may 
words  apparenthj  actionable  be  explained,  by  circumstan- 
ces, to  have  been  intended  and  understood  in  an  innocent  sense. 
Thus,  though  the  defendant  should  say,  "  Thou  art  a  murtherer," 
the  words  would  not  be  actionable,  if  the  defendant  could  make  it 
appear  that  he  was  conversing  with  the  plaintiff  concerning  unlawful 
hunting,  when  the  plaintiff  confessed  that  he  killed  several  hares 
with  certain  engines,  upon  which  the  defendant  said,  "  Thou  art  a 
murtherer,"  meaning  a  murtherer  of  hares  so  killed  (m).  [1]  \aa~\ 

(i)  Hob.  126.  <Ji)  1  Roll.  Ab.  74.  Cro.  Eliz.  496. 

{I)  Cro.  Eliz.  865.  (m)  4  Co    13. 

[1]  So  where  an  action  was  brought  for  calling  the  plaintiff  an  highwayman, 
robber  and  murderer,  and  it  was  shown  that  the  words  were  spoken  in  reference 
to  a  transaction  in  respect  to  which  the  opprobrious  epithets  were  wholly  inap- 
plicable, and  were  understood  by  the  by-standers  to  relate  to  that  transaction,  it 
•was  held  that  an  action  could  not  be  sustained.  Van  Rensselaer  v.  Dole,  1 
Johns.  Gas.  279. 

Although  the  words  be  not  actionable  when  the  hearers  understand  the 
facts  in  reference  to  which  the  words  are  spoken,  as  where  a  party  is  charged 
■with  having  killed  the  wife  of  the  speaker,  when  all  the  hearers  know  that  she 


CIVIL  REMEDY— ACTIONABLE  WORDS.  99 

Formerly  a  distinction  was  taken  between  saying,  "  Thou  art  a 
thief,  for  thou  hast  Stolen  such  a  thing,"  as  a  tree,  the  taking  of 
which  could  not  be  felonious,  and  the  saying,  "  Thou  art  a  thief, 
and  hast  stolen  such  a  thing  ;"  since  in  the  former  case  the  sub- 
sequent words  show  the  reason  of  calling  the  plaintiff  a  thief,  and 
that  no  felonious  imputation  was  meant;  but  in  the  latter,  the  action 
lies  for  calling  him  a  thief,  and  the  addition  "  thou  hast  stolen,"  is 
another  distinct  sentence  by  itself,  and  not  the  reason  of  the  former 
speech,  nor  any  diminution  thereof  (w). 

*Little   stress,  however,  would  probably  be  now  laid     [  *100  ] 
upon  this  distinction,  as,  in  common  discourse,  and  is 
frequently  intended  to  mean /or. 

And  even  in  the  construction  of  legal  instruments,  instances  are 
not  unfrequent,  where  the  vulgar  and  obvious  acceptation  of  the 
word  has  been  preferred  to  its  strict  grammatical  signification  (o). 

Brittridge  brought  an  action  for  these  words,  "  Mr.  Brittridge  is 
a  perjared  old  knave,  and  that  is  to  be  proved  by  a  stake  parting 
the  land  of  H.  Martin  and  Mr.  Wright."  And  upon  motion  in  arrest 
of  judgment,  it  was  held,  that  although  the  words,  "  thou  art  a  per- 
jured knave,"  without  any  more,  would  have  been  actionable  ;  yet 
that  upon  all  the  words  taken  together,  no  action  lay  ;  for  the  latter 
words  extenuate  the  former,  and  explain  his  intent,  that  he  did  not 
mean  any  judicial  perjury ;  and  therefore  it  was  adjudged  that  the 
words  were  not  actionable.     But  it  was  said,  that  if  the  plaintiff's 

is  living  ;  they  are  actionable  if  the  hearers  do  not  understand  the  circumstances 
rendering  the  words  innocent.  In  such  case  the  secret  intent  of  the  speaker  is 
immaterial,  Henry  and  wife  v.  Power,  10  Meeson  &  W.  564;  Hanklason  u. 
Bilby,  16  Id.  442.  See  also  1  Bailey,  595  ;  3  Dana,  138  ;  5  New  Hampshire, 
R.  203. 

[a  a]  The  words,  "  I  think  the  business  ought  to  have  the  most  rigid  inquiry, 
for  he  murdered  his  wife,  that  is,  he  administered  improperly  medicines  to  her 
for  a  certain  complaint,  which  was  the  cause  of  her  death,"  were  held  to  be 
actionable,  as  importing  at  least  a  charge  of  manslaughter  ;  and  though  the 
words  were  doubtful,  the  doubt  would  be  cured  by  the  finding  of  a  jury,  that 
they  were  meant  in  that  sense.     Ford  v.  Primrose,  5  D.  and  R.  289. 

(n)  Cro.  J.  114.  B.  L.  N.  P.  5.  Hob.  Rep.  106.  Cro.  Eliz.  857.  Hob.  77. 
Brownl.  2  God.  b.  241.  Hard.  7.  All.  31.  Sty.  66. 

(o)  6  East,  486.  Mo.  422.  1  Wils.  140. 


100  CRIMINAL  CHARGE. 

counsel  had  disclosed  the  truth  of  the  case  in  the  declaration,  the 
words  would  have  maintained  the  action  ;  for  the  truth  of  the  case 
was,  that  in  an  action  between  Martin  and  Wright,  the  state  of  the 
controversy  was,  whether  the  stake  stood  upon  the  land  of 
[  *101  ]  the  one  or  the  other,  or  indifferently  as  a  boundary  *be- 
tween  thtir  lands.  And  in  that  action  the  plaintiff  was 
sworn  as  a  witness  ;  and,  by  the  pretence  of  the  plaintiff,  had  per- 
jured himself.  But  this  special  matter  was  not  disclosed,  and  there- 
fore it  was  decided  for  the  defendant  (j»). 

Sir  Edward  Coke,  in  his  fourth  report,  observes,  that,  "  In  case 
of  slander  by  words,  the  sense  of  the  words  ought  to  be  taken,  and 
the  sense  of  them  appears  by  the  cause  and  occasion  of  speaking 
of  them  ;  for,  "  Sensus  verhorum  ex  causa  dicendi  accipiendus  est.'* 

And  again,  "  God  forbid  that  a  man's  words  should  be,  by  strict 
and  grammatical  construction,  taken  by  parcels  against  the  manifest 
intent  of  the  party,  upon  consideration  of  all  the  words  which  import 
the  true  cause  and  occasion,  which  manifest  the  true  sense  of  them." 
Thi  rule  is  so  clear,  and  so  well  established,  that  any  further  illus- 
tration of  it  would  be  nugatory ;  and  the  questions  which  may  arise, 
upon  which  party  shall  the  onus  of  proving  or  disproving  the  in- 
jurious intention  and  meaning  be  imposed  ;  and  how  shall  the  de- 
fendant best  avail  himself  of  explanatory  circumstances  in  his 
favour,  will  be  afterwards  considered  under  more  appropriate 
divisions. 

3dly.  From  the  mere  description  of  the  circumstances  constitut- 
ing the  offence. 
[  *102  ]  *In  the  older  cases,  much  difiSculty  prevailed  with  re- 
spect to  the  actionable  quality  of  words  which  contained 
a  mere  enumeration  of  circumstances :  it  was  frequently  doubted, 
in  the  first  place,  whether  the  circumstances,  supposing  them  to  be 
true,  constituted  an  indictable  offence  ?  in  the  second,  whether  the 
imputing  such  a  misdemeanor  was  a  sufficient  ground  of  action  ? 

The  affirmative  of  the  latter  question  has  already  been  attempted 
to  be  shown.  With  respect  to  the  first  part,  it  may  be  proper  to 
advance  a  few  observations. 

(p)  4  Co.  18.  Yel.  10.  34.  2  Rol.  Ab.  343.  Mo.  666. 


CIVIL  REMEDY— ACTIONABLE  WORDS.         102 

In  considering  the  class  of  cases  referable  to  this  head,  where 
offences  have  been  charged  not  amounting  to,  but  connected  with, 
felony,  it  Avill  be  convenient  to  distribute  them  into  imputations 
charging, 

An  attempt  to  commit  a  crime. 

A  solicitation  to  commit  a  crime. 

Some  preparation  made  in  contemplation  of  the  commission  of  a 
crime. 

As  to  words  charging  an  attempt  to  commit  a  crime. 

In  the  case  of  Sir  (5)  Earbert  Croft  v.  Brown,  Coke,  C.  J.  ob- 
served, that,  in  ancient  time,  "  voluntas  reputnhatur 
fro  facto  ;"  and  that  if  a  *person  lay  in  wait  to  kill  an-  [  *103  ] 
other,  and  upon  his  resisting,  wounded  but  did  not  kill 
him,  it  amounted  to  a  felony  at  Common  Law,  and  the  offender  was 
ousted  of  his  clergy  ;  the  intention,  manifested  by  an  overt  act,  con- 
stituted a  felony. 

The  learned  judge  then  proceeded  to  intimate,  that  any  words 
charging  an  overt  act  done  in  pursuance  of  a  felonious  intention, 
would  be  actionable.  But  that  in  the  principal  case,  the  words, 
"  He  keepeth  men  to  rob  me,"  were  not  actionable,  since  they  did 
not  charge  any  waylaying  or  overt  act  done. 

But  the  words,  "  He  (r)  sought  to  murder  me,  and  I  can  prove 
it,"  were  held  to  be  actionable. 

In  this  case  it  may  be  observed,  the  words  imported  more  than  a 
mere  inclination  to  murder  ;  since  the  term  sought  is  shown  by  the 
latter  words  to  refer  to  some  overt  act  capable  of  proof. 

But  the  words,  "  Thou  (s)  wouldest  have  killed  me,"  it  was  held 
that  no  action  lay,  since  intention  only  was  charged. 

In  Muney^s  case  (i).  Coke,  C.  J.  and  Houghton,  J. 
held  that  the  words,  "  Thou  art  a  knave,  *and  hast  laid     [  *104  ] 
in  wait  to  kill  me ;  and  thou  hast  hired  one  W.  to  kill 
me,"  were  not  actionable,  because  no  act  was  laid  to  be  done,  but 
an   intention   only  ;  and    that  a  mere   intent  is    not   punishabloo 

(<7)  3  Buls.  167.  (r)  Cro.  Eliz.  308. 

(s)  Dr.  Poe's  case,  vid.  2  Buls.  206.  1  Vin.  Ab.  440.  pi.  9. 
(t)  2  Buls.  206. 


104  CRIMINAL  CHARGE. 

It  is  remarkable,  that  the  lying  in  wait,  and  hiring  an  assassin  to 
murder  another,  should  be  considered  as  nothing  more  than  mere 
intention ;  and  this  decision  seems  to  be  very  inconsistent  with  the 
subsequent  doctrine  of  Lord  Coke  in  Sir  Earhert  Croft's  case  (u)  ; 
notwithstanding  therefore,  this  and  some  other  contradictory  author' 
ities,  it  may  be  collected  from  a  general  view  of  the  cases,  that  the 
charging  any  attempt  to  commit  a  felony  is  actionable,  for  such  an 
attempt  constitutes  an  indictable  offence  (a;). 

Where  the  words  charge  a  solicitation  to  commit  a  crime. 

The  defendant  said,  "  Mrs.  Margaret  Passio  sent  a  letter  to  my 
Mr.  and  therein  willed  him  to  poison  his  wife."  After  judgment  for 
the  plaintiff  it  was  assigned  for  error,  that  the  words  were  not  ac- 
tionable ;  because  they  did  not  charge  any  act  done ;  and  that  ib 
was  not  like  charging  the  plaintiff  with  lying  in  wait  to  commit  a 
murder ;  but  all  the  justices  and  barons,  besides  Kings-mill,  held, 

that  the  action  lay  (?/). 
[  *105  ]         *The  defendant    said,  "  Tibbot  (2)   and  one  Gough 
agreed  to  have  hired  a  man  to  kill  me."     And  judgment 
was  given  for  the  plaintiff  by  Wray,  C.  J.  and  Fenner,  J.  against 
the  opinion  of  Gawdy. 

The  defendant  said,  "  You  (a)  set  on  folks  to  murder  J.  S." 
And  Wylde,  J.  conceived  the  words  to  be  actionable,  since  the  of- 
fence was  indictable. 

The  defendant  said,  "  John  (6)  Leversage  would  have  robbed  the 
house  of  J.  S.  if  J.  D.  would  have  consented  unto  it.  He  persuad- 
ed J.  D.  unto  it  and  told  him  he  would  bring  him  where  he  should 
have  money  enough."  And  although  it  was  objected  in  arrest  of 
judgment,  that  the  plaintiff  could  receive  no  prejudice  from  the  words, 
which  did  not  impute  any  act  done,  the  plaintiff  had  judgment. 

The  defendant  said,  "  He  (c)  bade  J.  S.  to  steal  what  goods  he 
could,  and  he  would  receive  them."  And  it  was  held,  on  motion 
in  arrest  of  judgment,  that  the  words  were  not  actionable,  since 
they  merely  charged  the  giving  bad  advice,  and  no  act  done. 

But  in   Ladi/    Oockaine^s   case  (c?),   a   charge    of    having   so- 

(m)  3Buls.  167.  (.t)  2  East,  6. 

(y)  Cro.  Eliz.  747,  cited  by  Williams,  J.    Buls.  201. 

(z)  Cro.  Eliz.  (a)  West  v.  PhiUips,  Keb.  253. 

(6)  Cro.  E.  710.  (c)  2  Jo.  157.  {d)  Cro.  E.  49. 


CIVIL  KEMEDY— ACTIONABLE  WORDS.         106 

licited  another  to  commit  a  felony,  *was  held  to  be  ac-      [  *106  ] 
tionable.     And  in  Sir  JSarhert  Croft^s  case  (e)  it  was 
held,  that  to  say,  "  A.  did  hire  a  man  to  rob  me,"  Tvould  be  action- 
able. 

Where  the  words  charge  some  preparation  made  in  contemplation 
of  the  commission  of  a  crime. 

When  a  man  does  an  act  in  itself  indifferent,  but  in  contemplation 
of  the  commission  of  crime  in  future,  (as  the  act  is  not  indictable.) 
an  imputation  of  it  can  scarcely  be  considered  as  actionable.  As  if, 
for  instance,  a  person  were  to  purchase  a  pistol,  with  the  intent  to 
commit  murder  at  a  future  opportunity,  the  act  would  not,  in  law, 
amount  to  an  indictable  offence,  though  it  might  be  a  good  ground 
for  binding  the  party  to  his  good  behavior  (/).  It  iii  to  be  observ- 
ed, however,  that  in  Lady  ((/)  Cochaineh  case,  the  words  charging 
her  with  having  solicited  a  pregnant  woman  to  kill  her  child,  were 
held  actionable  ;  because,  if  true,  there  was  cause  to  bind  her  to  her 
yood  behavior.  The  words,  however  in  that  case,  were 
clearly  actionable  *upon  another  ground,  and  the  reason  [  *107  ] 
given  is  insuflScient,  since  it  appears,  from  a  variety  of 
decisions,  that  many  imputations  for  which,  if  true,  the  party  might 
be  bound  to  his  good  behavior,  are  not  actionable. 

The  defendant  said,  "  He  (]i)  keepeth  men  to  rob  me."  And 
it  was  held,  that  the  words  were  not  actionable. 

After  some  conversation  about  robbing  a  house,  the  defendant 
said,  "lt(0  was  T.  M.  (the  plaintiff)  and  J.  D.  that  were 
about  to  rob  E.  C.'s  house."  After  verdict  for  the  plaintiff,  it  was 
adjudged  by  Archer  and  Vaughn,  J.  for  the  defendant.  And  it 
was  said,  that  the  going  ivith  the  intent  to  lie  in  wait  to  kill  a  man 
was  not  indictable ;  but  that  the  lying  in  wait  with  the  same  intent 
was  indictable. 

Upon  the  whole  it  seems,  that  where  the  words  merely  impute  an 

(e)  3  Buls.  167.  'So  per  Grose,  J.  2  East,  20,  an  action  lies  for  charging 
the  plaintiff  with  having  solicited  a  servant  to  steal  the  goods  of  his  master. 

(/)  But  it  has  been  held,  that  the  procuring  counterfeit  coin  with  intent  to 
circulate  it,  is  an  indictable  offence.     R.  v.  Fuller,  R.  &  M.  C.  C.  308, 

(§•)  Cro.  E.  49  (h)  3  Buls.  167.  (i)  Freem.  46. 


107  CRIMINAL  CHARGE. 

act  done  in  contemplation  of  the  future  commission  of  a  crime, 
they  are  not  indictable,  unless  it  appear  that  the  defendant  intend- 
ed to  charge  the  plaintiff  with  having  solicited,  or  conspired  with, 
others  for  the  purpose  of  committing  the  crime. 

Where  thg  description  of   the  circumstances  is  precise,  little 
doubt  can  arise.     The  defendant  said,  "  You  (Jc}  have 
[  'lOS  ]     caused  this  boy  to  perjure  *himself."    And  the  words 
were  held  to  be  actionable,  since  the  facts  charged   con- 
stitute the  offence  of  subornation  of  perjury. 

So  where  the  defendant  said,  "  You  (I)  have  bought  a  roan 
stolen  horse,  knowing  him  to  be  stolen." 

The  defendant  said,  "  He  (w)  came  to  my  door  and  set  a  pistol 
to  my  breast,  and  demanded  money  ^f  me  ;  and  I,  for  safeguard 
of  my  life,  gave  him  what  money  he  desired."  Roll.  C.  J.  ob- 
served, if  the  words  sound  to  charge  him  with  felony,  the  action 
will  lie  :  and  three  of  the  Justices  decided  for  the  plaintiff. 

The  defendant  said  of  a  justice  of  the  peace  and  deputy  licuten- 
ant  for  the  county  of  Warwick,  "  I  have  heard  that  a  maid  of  J. 
K.'s  should  report,  that  he  being  sick  and  she  looking  through  a 
hole  of  the  door  where  he  then  lay,  saw  a  priest  (innuendo,  a 
popish  priest)  give  the  eucharist  and  extreme  unction  to  Sir  J.  K.'* 
It  was  moved  in  arrest  of  judgment,  that  these  words  did  not 
amount  to  calling  him  a  papist ;  since  it  did  not  appear  that  the 
priest  was  a  popish  priest,  unless  by  innuendo.  But  it  was,  after 
two  arguments,  resolved,  that  the  words  taken  altogether 
[  *109  ]  were  actionable,  and  explained  one  *another ;  that  a 
priest  who  gives  the  extreme  unction  must  be  a  popish 
priest,  and  he  that  receives  it  a  papist ;  and  the  judgment  given 
for  the  plaintiff  in  the  Common  Pleas,  was  afterwards  affirmed  ia 
the  King's  Bench  (?i). 

The  defendant  said,  "Thou  (o)  didst  violently,  upon  the  high- 
way, take  my  purse  from  me,  and  four  shillings  and  two  pence  in 
it :    and  didst  threaten  m6  to  cut  me  off  in  the  midst,  but  I  was 

H)  Brownl..  2.     {I)  Brigg's  case,  God.  157.     (m)  Neve  v.  Cross,  Sty.  350. 
(n)  Sir  John  Knightly  v.  Marrow,  3  Lev.  68. 
(o)  Lawrence  v.  Woodward,  Cro.  Car.  177. 


CIVIL  REMEDY— ACTIONABLE  WORDS.        109 

forced  to  run  away  to  save  my  life."  And  the  words,  which  in 
fact  amount  to  a  description  of  a  highway  robbery,  were  held  to  be 
actionable. 

III.  That  the  criminal  act  was  meant  to  be  imputed  to  the  plain* 
tiff. 

The  application  of  the  injurious  charge  to  the  plaintiff  may  be 
collected,  generally,  from  any  circumstances  which  indicate  the  in- 
tention of  the  defendant,  so  to  apply  his  words,  and  which  induced 
the  hearers  to  suppose  that  the  plaintiff  was  the  person  meant. 

Thus,  if  the  defendant  should  say,  "  I  (p)  know  what  I  am,  and 
I  know  what  the  plaintiff  is  :  I  never  did  such  an  act," 
(specifying  some  criminal  act,)  the  words  would  be  *act-     [  *110  ] 
ionable,  provided  the  hearers  understood  the  offence  to 
have  been  imputed  to  the  plaintiff  by  such  words. 

Where  a  charge  has  been  imputed  to  one  of  several,  without 
specifying  him,  it  has  been  held  in  many  of  the  older  cases,  that  no 
action  was  maintainable  by  any  of  them.  The  defendant  said  to 
three  men  who  had  given  evidence  against  him,  "  One  (5-)  of  you 
is  perjured."  And  upon  an  action  brought  by  one  of  them,  it  was 
adjudged,  that  no  action  lay. 

And  so  it  has  been  held,  that  for  the  words,  "  One  of  my  broth- 
ers is  perjured."  Although  one  of  the  brothers  should  bring  an 
action,  and  aver  that  the  words  were  spoken  concerning  him,  yet, 
on  account  of  the  apparent  uncertainty,  no  action  would  be  maintain- 
able (r).   [1] 

But  it  has  since  been  held,  that  for  the  words  "  A.  y^s)  or  B.  mur- 
dered C."  either  A.  or  B.  might  bring  an  action. 

If  from  the  plaintiff's  statement  it  appear  that  he  could  have  been 

(p)  2  Lev.  150.  Snell  v.  Webling,  1  Vent.  276.         (y)  Cro.  Eliz.  479. 

(r)  Per  Tanfield,  J.  in  Wiseman  v.  Wiseman,  Cro.  .T.  107. 

(s)  10  Mod.  196.  Cart.  56. 

[1]  In  Gidney  v.  Blake,  11  Johns.  R.  54,  the  uncertainty  was  as  great  as  in 
the  case  mentioned  in  the  text,  and  yet  the  action  was  held  to  lie.  The  words 
were,  "  your  children  are  thieves."  The  declaration  stated  a  coZ/o^umm  with 
the  father  of  the  plaintiff,  of  and  concerning  his  children,  and  of  and  concerning 
he  plaintiff.     See  4.  Co.  17.  b. 

Vol.  I.  31 


110  CRIMINAL  CHARGE. 

meant,  the  finding  of  the  jury  for  him  will  be  conclusive  as  to  the 
defendant's  application  of  the  charge  to  him,  for   otherwise  they 

could  not  have  given  him  damages. 
[  *111  ]         The  application  to  the  plaintiff  may  be  *ascertained  by 

a  variety  of  circumstances;  as  from  his  having  been  (0 
the  subject  of  previous  (u)  conversation,  or  from  his  being  described 
by  name,  or  by  any  other  means  which  are  sufficient  to  induce  the 
hearer  to  apply  the  offensive  imputation  to  the  plaintiff. 

The  plaintiff  was  a  justice  of  the  peace,  and  Receiver  of  the 
Court  of  Wards,  and  by  reason  thereof  received  great  sums  of  mon- 
ey for  the  king,  and  was  used  with  much  confidence  by  the  king ; 
and  the  defendant,  speaking  concerning  him  with  one  Thomas  Whore- 
wood,  spoke  these  words,  "  Mr.  (x)  Deceiver  hath  deceived  the 
king."  After  a  verdict  for  the  plaintiff,  the  court,  on  motion  in  ar- 
rest of  judgment,  held,  that  the  action  well  lay;  that  the  words 
"  Mr.  Deceiver,"  were  an  ironical  allusion  and  nickname  to  his  office 
and  place  ;  and  that  if  such  crafty  evasions  should  be  admitted,  it 
would  be  an  usual  practice  to  slander  sans  punishment. 

If  A.  B.  say  to  C.  D.  before  whom  E.  F.  is  walking,  "  He  (?/) 
that  goeth  before  thee  is  perjured,"  an  action  lies,  if  it  appear  that 
none  but  E.  F.  was  walking  before  C.  D.  at  the  time  of 

speaking. 
[  *112  ]         *In  the  case  of  J ''Anson  (2)  v.  Stuart,  the  plaintiff 

was  thus  described  in  the  libel : — "  This  diabolical  char- 
acter, like  Polyphemus  the  man-eater,  has  but  one  eye  ;  and  is  well 
known  to  all  persons  well  acquainted  with  the  name  of  a  certain 
noble  circumnavigator  (meaning  by  the  last  mentioned  words  to  al- 
lude to  the  name  of  the  plaintiff,  J^Anson.^ 

From  these  (a)  and  a  number  of  similar  instances,  it  may  be 
laid  down  as  a  general  rule,  that  the  application  of  the  words  to  the 

(0  1  Rol.  Ab.  85.  1  Rol.  Ab.  75. 
(m)  Cro.  J.  557.  6  Bac.  Ab.  231. 
{x)  Sir  Miles  Fleetwood  v.  Curl,  Cro.  J .  557. 

(y)  1  Rol.  Ab.  81.  (2-)  1  T.  R.  748. 

(a)  Cro.  Eliz.  497.  Cro.  J.  444.  2  Barnard.  Rep.  Hughes  v.  Winter, 
Keb.  525. 


CIVIL  REMEDY— ACTIONABLE  WORDS.         112 

plaintiflf  is  a  matter  to  be  collected  by  the  jary,  from  the  particular 
circumstances  of  each  case. 

The  difficulties  which  occur  upon  this  point,  are  generally  of  a 
technical  nature,  and  consist  in  the  doubt,  Avhether  the  plaintiff  has 
so  stated  his  case  in  the  declaration  as  to  show  that  the  conclusion 
could  properly  be  drawn :  the  consideration  of  these,  however,  be- 
longs to  a  subsequent  division  of  the  subject. 


CHAPTER  II. 


When  an  infectious  disorder  is  imputed. 

Another  branch  of  cases  where  the  law  allows  an  action  to  be 
maintained,   without  special  damage,  consists  of  those 
•where  a  person  is  charged  with  having  an  infectious  dis-     [  'US  ] 
ease,  the  effect  of  which  imputation,  if  believed,  would 
be  to  exclude  him  from  society. 

It  has  been  said  (a),  that,  "  Since  man  is  a  being  formed  for 
society,  and  standing  in  almost  constant  need  of  the  advice,  comfort, 
and  assistance,  of  his  fellow  creatures,  it  is  highly  reasonable  that 
any  words  which  import  the  charge  of  having  a  contagious  distemper 
should  be  in  themselves  actionable  ;  because  all  prudent  persons 
will  avoid  the  company  of  one  having  such  a  distemper. 

As  the  ground  of  proceeding  is  the  presumption  that  the  plaintiff 
will  be  wholly  or  partially  excluded  from  society  and  its  comforts, 
the    action   is    consequently    confined  to    the   imputing 
those  disorders  which  are  so  infectious  in  their  'nature     [  *114  ] 
and  ])ernicious  in  their  effects,  as  to  render  the  person 
afilicted  an  object  likely  to  be  shunned  and  avoided. 

Actions  for  words  of  this  description  seem,  in  the  absence  of  spe- 
cial damage,  to  have  been  confined  to  charges  of  leprosy  and  lues 
venerea.     For  though  it  was  held,  that  an  action  lay  for  saying, 

(a)  6  Bac.  Ab.  212. 


CIVIL  REMEDY— ACTIONABLE  WORDS.        114 

"  He  (5)  buried  people  ^ho  died  of  the  plague  in  his  house,"  it  ap- 
pears that  special  damage  was  laid  and  proved. 

There  is  however,  one  case  in  which  it  has  been  held,  that  to 
charge  another  with  having  the  "  falling  (c)  sickness,"  is  actionable. 
So  great,  formeriy,  was  the  dread  of  leprous  contagion,  that  an 
especial  writ  was  proved  for  the  removal  of  the  infected  object  to 
some  secluded  place,  where  he  might  no  longer  be  a  terror  to  soci- 
ety :  happily  this  writ  has  long  lost  its  use. 

It  seems,  however,  that  though  the  reason  has  in  some  degree 
ceased  to  operate,  an  action  will,  even  at  this  day,  be  sustainable 
for  a  charge  of  either  of  the  diseases  ((^)  alluded  to. 

From  the  case  of  Villars  and  3Ionsley  (e),  it  appears, 
that  to  say  another  has  the  itch,  is  not  *actionable  ;  [  •US  ] 
though  such  an  accusation  would  be  actionable  if  written. 
It  is°to  be  remarked,  that  in  the  above  case,  both  Wilmot,  C.  J.  and 
Gould,  J.  seem  to  take  for  granted,  that  to  impute  the  plague  is 
actionable  ;  but  no  case  was  cited  in  which  this  point  has  been  ex- 
pressly determined. 

The  ground  of  the  action  being  the  presumption  of  the  plaintiff's 
exclusion  from  society,  no  action  will  lie  for  an  imputation  in  (/) 
the  past  tense,  for  such  an  assertion  does  not  represent  the  plaintiff, 
at  the  time  of  speaking,  to  be  unfit  for  society,  and  therefore  the 
substance  of  the  action  is  wanting  ;  and  it  was  observed,  in  the  case 
of  CarslakeY.  3Iapledoram  (/),  that  this  doctrine  was  justified  by 
all  the  cases,  except  one,  and  that  loosely  reported. 

With  respect  to  the  terms  in  which  the  imputation  is  conveyed, 
as  in  other  cases,  they  may  either  expressly  and  by  their  own  power 
impute  the  disease,  or  by  the  aid  of  collateral  circumstances  may 
render  the  implication  unavoidable. 

Thus,  to  say  {g)  a  man  has  the  leprosy,  or  to  call  him  leprous 
knave,  is  actionable  :  the  term  leper  being  in  itself  a  clear  and  un- 
equivocal designation  of  the  speaker's  meaning. 

(J)  Kit.  173.  b.  1  Com.  Dig.  252.  (c)  1  Rol.  44.  1.  7. 

(rf)  Caislake  v.  Mapledoram,  2  T.  R.  473.  (e)  2  WUls.  403. 

(/)  Carslake  v.  Mapledoram,  2  T.  R,  473.  Str.  1189. 
[g)  2T.  R.  473.     Cr.  J.144. 


116  WORDS  IMPUTING  DISEASE. 

[  *116  ]  •Without  citing  the  disgusting  string  of  cases  upon 
this  subject,  Avith  which  the  oiler  reports  abound,  it  may 
be  deemed  sufficient  to  observe,  that  wherever  it  can  be  collected 
from  the  circumstances,  that  the  speakers  intended  the  hearers  to 
understand  that  the  person  spoken  of  was  at  the  time  of  speaking, 
afflicted  with  either  of  the  disorders  above  mentioned,  an  action  may 
be  maintained.  And  the  meaning  may  be  evidenced  either  by  re- 
ference to  the  mode  in  which  the  disease  was  communicated,  the 
symptoms  (/i)  with  which  it  is  attended,  its  effects  upon  the  person 
(i)  or  constitution,  the  means  (^)  of  cure,  the  necessity  of  avoiding 
(Z)  the  person  infected  ;  or,  in  short,  by  any  other  allusion  capable 
of  conveying  the  offensive  imputation. 

{h)  Holt.  563. 

{i)  Cro.  J.  430.  144.    1  Vin.  Ab.  488.  Cro.  Eliz.  214.  289. 
k)  Cro.  J.  430.  Cro.  Eliz.  648.  Roll.  Rep.  420.        (/)  Cro.  J.  430. 


CHAPTER   III. 


Where  the   imputation   affects   a  person   in   his    Office, 
Profession,  or  Business. 

Next  to  imputations  which  tend  to  deprive  a  man  of  his  Ufe,  or 
liberty,  or  to  exclude  him  from  the  comforts  of  society, 
may  *be  ranked  those  which  affect  him  in  his  office,  pro-  [  *117  ] 
fession,  or  means  of  livelihood.  To  enumerate  the  dif- 
ferent decisions  upon  this  subject  would  be  tedious,  and  to  reconcile 
them  impossible  ;  yet  they  seem  to  yield  a  general  rule,  sufficiently 
simple  and  unembarrassed  ;  namely,  that  words  are  actionable  which 
directly  tend  to  the  prejudice  of  any  one  in  his  office,  profession  (a), 
trade,  or  business. 

Observations  upon  this  class  of  cases  may  be  divided  into  those 
relating  to  the  grounds  of  the  action,— the  extent  of  the  action,— 
and  the  degree  of  certaintg  and  precision  requisite  to  render  the 
u'ords  actionable. 

Words  which  affect  a  person  in  his  office  generally  are  actionable, 
whether  the  office  be  merely  confidental  and  honorary,  or 
be  productive  of  'emolument.  The  ground  of  action  in  [  *118  ] 
the  two  cases,  seems,  however,  to  be  somewhat  different. 
Where  his  office  is  lucrative,  words  which  reflect  upon  the  integrity 
or  capacity  of  the  plaintiff  render  his  tenure  precarious,  and  are 
therefore  pro  tanto  a  detriment  in  a  pecuniary  point  of  view  ;  but 
where  the  office  is  merely  confidential,  the  presumptive  loss  of 
emolument  cannot  supply  the  ground  of  action. 

(a)  3  WUs.  186. 


118  CIVIL  REMEDY— ACTIONABLE  WORDS. 

The  whole  class  of  cases  in  which  magistrates  and  others  (whose 
offices  are  merely  confidential  and  honorary)  have  been  allowed  to 
recover  a  pecuniary  compensation  for  words  relating  to  their  official 
character,  seems  to  rest  upon  more  dubious  principles  than  any  other 
in  which  a  remedy  is  given  without  proof  of  some  specific  loss. 
For  as  even  the  loss  of  office  itself  would  not  be  attended  with  any 
loss  of  emolument,  such  as  would  naturally  result  from  deprivation 
of  liberty,  or  exclusion  from  society,  the  evil  seems  scarcely  to 
admit  of  pecuniary  admeasurement.  Besides,  the  bad  consequences 
which  arise  from  degrading  the  magistracy,  are  of  a  public  nature, 
and  are  therefore  rather  a  matter  of  criminal  than  of  civil  cogniz- 
ance, especially  as  the  damages  in  a  civil  action  are  not  considered 
to  be  of  a  penal  nature,  but  are  given  as  a  private  compensation  to 
the  party  injured.  It  lias  long,  however,  been  fully 
[  *119  ]  established,  that  words  are  equally  actionable  *whether 
the  office  or  profession  to  which  they  relate  be  lucrative 
or  merely  confii^ential . 

So  that  words  spoken  of  Justices  of  the  Peace,  or  physicians,  or 
barristers,  are  frequently  actionable,  although  the  office  of  the  first 
be  merely  confidential,  and  the  latter  are  not  in  legal  contemplation 
entitled  to  demand  the  payment  of  fees  [1.]  Where  the  office  is 
simply  confidential,  a  singular  distinction  has  been  taken  between 
words  imputing  want  of  ability  in  the  holder,  and  those  which  charge 
him  with  want  of  integrity. 

It  has  been  held,  that  to  charge  a  person  in  such  an  office  with 
any  corruption,  or  with  any  ill  design  or  principles,  is  actionable  ; 
but  that  to  represent  him  as  wholly  incompetent,  in  point  of  ability, 
to  hold  the  office,  is  not  a  slander  for  which  an  action  is  maintaina- 
ble. The  reason  assigned  for  the  distinction  is  so  remarkable,  that 
it  may  be  proper  to  give  it  in  the  very  words  of  Lord  Holt. 

He  says  (6),  "  It  has  been  adjudged,  that  to  call  a  Justice  of  the 

(6)  Howe  V.  Prinn,  Holt,  653.  Salk.  694. 

[1]  In  New-York  it  is  held  by  the  courts  that  both  physicians  and  barristers 
or  counsel  may  maintain  suits  at  law  for  the  recovery  of  their  fees  ;  M'Pherson 
«.  Cheadell,  24  "Wendell,  15  ;  Finch  u-Gridley's  exrs.  25  Id.  469  ;  Stevens  and 
Cagger  v.  Adams,  23  Wendell  57,  and  26  Id.  451  S.  C. 


SPECIAL  CHARACTER.  119 

Peace,  blockhead,  ass,  &c.  is  not  a  slander  for  which  an  action  lies, 
because  he  was  not  accused  of  any  corruption  in  his  employment,  or 
any  ill  design,  or  principle  ;  and  it  was  not  his  fault  that  he  was  a 
blockhead ;  for  he  cannot  be  otherwise  than  his  Maker 
made  him ;  *but  if  he  had  been  a  wise  man,  and  wicked  [  *120  ] 
principles  were  charged  upon  him  when  he  had  not  them, 
an  action  would  have  lain ;  for  though  a  man  cannot  be  wiser,  he 
may  be  honester  than  he  is.  If  a  person  be  in  a  place  of  profit, 
and  he  is  accused  of  insufficiency,  he  shall  have  remedy  by  action. 
'Tis  otherwise  if  he  be  only  in  a  place  of  honour ;  though  even 
there,  if  he  is  charged  with  ill  principles,  and  as  disaffected  to  the 
government,  he  shall  have  an  action  for  such  scandal  to  his  reputa- 
tion." 

In  the  case  of  Onslow  (c)  v.  Some,  L.  C.  J.  De  Grey,  in  giving 
judgment,  observed,  "  It  was  objected  at  the  bar,  on  the  side  of  the 
defendant,  that  words  spoken  of  an  officer,  or  magistrate,  are  not 
actionable,  unless  they  carry  an  imputation  of  a  criminal  breach  of 
duty,  I  will  not  give  this  my  sanction,  because  I  think  for  imputa- 
tion of  ignorance  to  one  in  a  profession  or  office  of  profit,  an  action 
will  certainly  lie." 

After  it  had  once  been  established  that  a  magistrate  might  recover 
a  pecuniary  compensation  for  words  which  rendered  his  tenure  pre- 
carious, the  action  in  reason  and  principle  extended  itself  to  all  im- 
putations which  could  affect  that  tenure,  and  as  gross 
ignorance  is,  as  well  as  corruption,  a  *sufficient  cause  of  [  *121  ] 
deprivation,  it  is  difficult  to  say  why  an  imputation  of  the 
former  kind  should  not  be  actionable  as  well  as  one  of  the  latter ; 
the  malice  of  the  author,  the  falsity  of  the  charge,  and  its  probable 
consequences,  being  in  the  two  cases  precisely  similar.  It  may  be 
added,  that  the  distinction  is  inconsistent  with  the  class  of  cases  in 
which  barristers  and  physicians  (whose  situations  are  in  law  consid- 
ered as  merely  honorary)  have  been  allowed  to  recover  for  words 
imputing  want  of  ability,  as  well  as  for  those  which  charged  them 
with  want  of  integrity. 

(c)3Wiis.  186.  L^^^J 

Vol.  1.  32 


121        CIVIL  REMEDY— ACTIONABLE  WORDS. 

The  case  of  Bill  ((i)  v.  lieal  was  a  precedent  for  the  opinion  of 
C.  J.  Holt,  in  the  case  of  Howe  v.  Prinn  (e).  There  Foster,  C. 
J.  and  Wyndham  and  Twysden,  Js.  decided  against  the  opinion  of 
Mallet,  J.  that  the  words,  "  He  is  a  fool  or  ass,  a  beetle-headed 
justice,"  were  not  actionable  But  the  three  justices  founded  their 
opinion  upon  the  cases  of  Sir  John  Hollis  v.  Briscow  (/),  and  of 
Hammond  {g)  v.  Kingsmill. 

In  the  former  case,  the  plaintiff  was  a  justice  of  the  peace  and 
deputy-lieutenant  of  a  county,  and  the  defendant  said  to  his  ser- 
vant, *'  Your  master  is  a  base  rascally  villain,  and  is 
[  *122  ]  neither  nobleman,  knight,  or  gentleman,  but  a  most  'vil- 
lainous rascal,  and  by  unjust  means  doth  most  villanously 
take  other  men's  rights  from  them,  and  keepeth  a  company  of 
thieves  and  traitors  to  do  mischief,  and  giveth  them  nothing  for 
their  labors  but  base  blue  liveries,  and  this  all  the  country  reports, 
and  other  good  he  doeth  not  any."  And  the  defendant  had  judg- 
ment, chiefly  on  the  ground,  that  the  words  were  to  be  construed 
according  t^o  the  now  exploded  doctrine  of  the  mitior  sensus^  for 
which  reason  the  case  can  scarcely  be  considered  as  an  authority. 
In  the  latter  case,  the  words  were,  "  He  was  a  debauched  man, 
and  not  fit  to  be  a  justice."  But  it  appears  (/<)  that  the  judgment 
in  that  case  was  given  for  the  defendant,  because  the  word's  were 
spoken  of  a  time  past ;  and  Twysden,  J.  said,  that  it  would  have 
been  otherwise  if  the  words  had  been,  "  he  is  a  dehaucliej  man.^^ 
The  two  cases,  therefore,  upon  which  reliance  was  placed,  in  tho 
case  of  Bill  v.  Neale,  seem  to  be  no  sufficient  authorities  for  that 
decision. 

Where  words  relate  to  a  man's  official  character,  the  danger  of 
exclusion  from  office  gives  rise  to  the  action.  It  was  held,  indeed, 
that  an  action  was  maintainable  for  the  words,  "  When  (e)  thou 
wert  a  justice  thou  wert  a  bribing  justice."  And  it  was  said,  that 
though  they  refer  to  a  thing  past,  yet  they  defame  him 
[  *123  ]  for  ever  in  other  people's  "opinions,  and  make  him  ac- 
counted unworthy  to  bear  office  afterwards.     Tho  au- 

{d)  1  Lev.  52.     (e)  Holt,  652.  (  /)  Cro.  J.  58. 

ig)  7  J.  1.        (A)  1  Vent.  50.  Sir  J.  Herle  v.  Osgood,      (i)  Yel.  153 


SPECIAL  CHARACTER.  123 

thority,  however  of  this  decision  appears  to  be  very  suspicious,  and 
the  reason  given  would  apply  to  every  case  where  general  want  of 
integrity  is  imputed  to  a  private  individual,  for  it  may  by  possibility 
have  the  effect  of  preventing  him  from  being  put  into  the  commis- 
sion. 

C.  J.  Be  Grey  {k^^'m  giving  judgment  in  Onsloio  v.  Home,  said, 
"  I  know  of  no  case,  wherever  an  action  for  words  was  grounded 
upon  eventual  damages,  which  may  possibly  happen  to  a  man  in  a 
future  situation,  notwithstanding  what  the  chief  justice  throws  out 
in  2  Vent.  3G6.,  where  he  is  made  to  say, '  That  where  a  man  had 
been  in  an  office  of  trust,  to  say  he  behaved  himself  corruptly  in  it, 
as  it  imported  great  scandal,  so  it  might  prevent  his  coming  into 
that  or  the  like  office  again,'  I  think  the  chief  justice  went  too 

far"  [1]. 

And  where  an  action  is  brought  for  words  spoken  of  a  barrister 
or  physician,  it  must  appear  that  he  practiced  (0  as  such  at  the 
time  the  words  were  spoken  ;  for  otherwise  the  words  could  not  have 
affected  him  professionally.  A  doubt  has  been  raised,  whether 
damages  are  properly  recoverable  by  barristers  and  phy- 
Vicians  for  words  relating  to  their  professions,  since  [  *124  ] 
their  fees  are  merely  honorary,  and  not  demandable  in 
a  court  of  law  ( w)  [2] ;  the  actual  decisions,  however,  upon  the 
subject,  leave  no  doubt  as  to  their  right  to  recover  for  such  words  ; 
and  if  their  situations  be  considered  as  merely  confidential,  their 

(k)  3  Wils.  188.  (/)  6  Bac,  Ab.  215.  lb.  216.  Sty.  231.  Poph.  207. 

(m)  6  Bac.  Ab.  210. 

[1]  In  Forward  v.  Adams,  7  Wendell  204,  it  was  held  that  an  action  did 
not  lie  for  defamatory  words  spoken  in  reference  to  the  official  conduct  of  the 
plaintiff  whilst  he  held  a  place  of  public  trust  and  confidence,  where  the  words 
were  spoken  after  the  expiration  of  the  term  for  which  the  office  was  held  ; 
but  in  Cramer  v.  Riggs,  17  Wendell  209,  an  action  for  a  libel  imputing  corrupt 
conduct  to  the  plaintiff  whilst  holding  a  public  station,  was  sustained,  although 
the  libel  was  published  after  the  expiration  of  the  term  of  service  of  ihe  plain- 
tiff. The  difference  in  the  decisions  rests  upon  the  distinction  that  an  action 
for  a  libel  is  sustained  on  the  ground  that  it  exposes  the  party  to  public  odium 
and  disgrace,  whereas  for  words  not  actionable  in  themselves,  an  action  does 
not  lie  unless  special  damage  be  alleged  and  proved. 
[2]  See  note  [1]  page  119,  ante. 


124        CIVIL  REMEDY— ACTIONABLE  WORDS. 

right  to  recover  rests  upon  the  same  foundation  with  that  of  magis- 
trates and  others,  whose  offices  are  of  a  similar  description. 


AS  TO  THE  EXTENT  OF  THE  ACTION. 

The  action  appears  to  extend  to  all  offices  of  trust  or  profit,  with- 
out limitation,  provided  they  be  of  a  temporal  nature.  Thus  it  has 
been  held,  that  an  action  is  maintainable  for  words  spoken  of  a 
churchwarden  (?2). 

It  has  been  said,  that  to  call  (o)  an  escheator,  coroner,  a  sheriff, 
attorney,  or  such  as  are  officers  of  record,  "  extortioner,"  an  action 
lies ;  but  that  for  calling  a  bailiff  or  steward  of  a  base  court,  who 
are  not  officers  of  record,  "  extortioner,"  no  action  lies ;  because  ex- 
tortion cannot  be  but  in  such  as  are  officers  of  record. 
[  *125  ]  There  seems,  however,  to  be  little  force  in  this  'dis- 
tinction, for  any  man  is    punishable  for  extortion  (p). 

It  was  held,  that  for  saying  of  the  deputy  of  Ciarencieux,  king 
of  arms,  that  he  was  (5-)  a  "  scrivener,  and  no  herald,"  an  action 
was  maintainable.  So  for  words  of  the  master  of  the  mint  (r)  ;  of 
a  clerk  to  a  public  company  (s)  ;  of  a  town  clerk  (t)  of  a  steward 
(w)  of  a  court. 

But  where  the  defendant  (a;)  said  of  a  member  of  parliament, 
"  As  to  instructing  our  members  to  obtain  redress,  I  am  totally 
against  that  plan  ;  for  as  to  instructing  Mr.  Onslow  (the  plaintiff}, 
we  might  as  well  instruct  the  winds,  and  should  he  (the  plaintiff) 
even  promise  his  assistance,  I  should  not  expect  him  to  give  it  us  ;" 
after  verdict  for  the  plaintiff,  judgment  was  arrested,  and  it  was  ob- 
served by  C.  J.  De  Grey,  on  that  occasion,  that  the  words  did  not 
charge  the  plaintiff  with  any  breach  of  his  duty,  his  oath,  or  any 

(n)  Sty.  338.  1  Vin.  Ab.  463.  Cro.  J.  339.  2  Buls.  218.  Cro.  E.  358. 

(0)  Dal.  45.  pi.  35.  1  Vin.  Ab.  463.         (p)  Dal.  43.  1.  Vin.  Ab.  463. 

iq)  Cro.  El.  328.  (r)  Leo.  88. 

(s)  Cro.  El.  358.         (0  Hutt,  23.  (u)  1  Roll.  Ab.  56. 

{x)  Onslow  V.  Home,  3  Wils.  177.  Words  which  are  in  themselves  action- 
able, are  not  the  less  so  from  having  been  applied  to  a  candidate  to  serve  in  par- 
liament. Harwood  v.  Sir  J.  Astley.  4  Bos.  &  Pul.  47.  But  see  note  [1], 
page  194  infra. 


SPECIAL  CHARACTER.  126 

crime  or  misdemeanor,  whereby  he  had  suffered  any  temporal  loss  in 
fortune,  office,  or  in  any  way  whatever. 

•The  action  extends  to  words  spoken  of  men  in  their  [  *126  ] 
profession,  as  barri3ters(?/),  attorneys(2)  physicians,  (a) 
and  clergymen  (5).  But  it  may  be  doubted  whether  words  spoken  of 
a  clergyman  would  be  actionable,  unless  he  held  some  benefice  or  pre- 
ferment, of  which  he  might  be  deprived  if  the  words  were  true.  The 
reason  usually  given  for  suppordng  the  action  in  such  a  case,  is  that 
the  imputation  would  be  a  cause  of  deprivation  (c).  But  if  he  be  in 
actual  receipt  of  any  professional  temporal  emolument,  as  preacher, 
.under  lecturer,  or  even  an  occasional  reader,  and  the  charge,  if  true, 
would  be  ground  of  degradation  from  holy  orders,  the  imputation 
would,  it  seems,  in  principle,  be  actionable. 

An  action  extends  to  words  affecting  a  person  in  the  particular 
art  by  which  he  gains  his  livehhood,  as  of  a  schoolmaster  (t^).  It 
has  been  held,  indeed,  that  to  slander  a  schoolmistress,  who  taught 
children  to  read  and  write,  in  her  vocation,  was  not  ac- 
tionable. The  authority  of  the  *dictura,  however,  ap-  [  *127  ] 
pears  to  be  questionable.  It  was  decided,  in  the  case  in 
which  it  was  reported  to  have  been  delivered,  that  to  accuse  a  mid- 
wife (e)  of  ignorance  in  her  profession  was  actionable  ;  and  it  is 
difficult  to  say  upon  what  principle  a  schoolmistress  is  not  as  much 
entitled  to  the  protection  of  the  law  against  malicious  attacks,  by 
which  her  means  of  Uving  are  likely  to  be  impaired,  as  a  midwife. 

So  any  words  tending  to  injure  a  merchant  or  tradesman  are  ac- 
tionable ;  whether  they  reflect  upon  the  honesty  of  his  dealings,  his 
credit,  or  the  excellence  of  the  subject  matter  in  which  he  deals. 

To  say  of  a  cornfactor,  "  You  are  a  rogue  and  a  swindling  rascal, 

(y)  2  Vent.  28.  (s)  1  Lev.  297. 

(a)  1  Roll.  Ab.  54.  per  Twisden,  1  Ven.  21.  Cro.  Car.  270. 

(b)  Al.  63.  3  Lev.  17.  1  Roll.  Ab.  58.  Str.  649.  As  to  say  of  a  clergyman 
he  speakelh  lies  in^he  pulpit,  for  it  is  a  cause  of  deprivation.  1  Holt.  58.  1. 
30.  But  to  say  of  a  clergyman,  you  are  an  old  rogue,  rascal,  and  contempta- 
ble  fellow  it  seems  is  not  actionable.     Musgrove  v.  liovey,  Sir.  946. 

(c)  1  Roll.  58.  1.  30.  id)  2  Roll.  R.  72.  Het.  71. 
(e)  1  Vent.  21. 


127        CIVIL  REMEDY— ACTIONABLE  WORDS. 

you  delivered  me  100  bushels  of  oats,  worse  by  6s.  a  bushel  than  I 
bargained  for,"  are  actionable  without  proof  of  special  damage  (/). 

And  the  action  seems  to  extend  to  words  spoken  of  a  person  in 
any  lawful  employment,  by  which  he  may  gain  his  livelihood. 

The  defendant  said  (^),  "  Thou  has  received  money  of  the  king 
to  buy  new  saddles,  and  hast  cozened  the  king,  and 
[  '128  ]  bought  old  saddles  for  the  *troopers."  And  the  words 
were  held  to  be  actionable  ;  for  it  was  said,  it  was  not 
material  what  employment  the  plaintiff  held  under  the  king,  if  he 
might  loose  his  employment  and  trust  thereby,  and  that  it  was  im- 
material whether  the  employment  was  for  life  or  for  years. 

The  defendant  (Ji)  said  of  a  person  employed  by  the  underpost- 
master  to  carry  about  post  letters,  on  which  he  had  a  profit,  "  He 
has  broken  up  letters,  and  taken  out  bills  of  exchange."  After 
verdict  and  judgment  for  the  plaintiff,  one  cause  of  error  assigned 
was,  that  no  action  would  lie  for  scandalizing  such  an  employmsnt  ; 
and  Hale  was  of  opinion,  chiefly  from  the  quality  of  the  employment, 
that  the  judgment  ought  to  be  reversed;  for  he  said  that  a  man 
should  not  speak  disparagingly  of  his  cook  or  groom,  but  an  action 
would  be  brought,  if  such  action  could  be  maintained. 

The  humility  of  the  employment  or  occupation  seems,  however, 
to  be  no  objection  to  the  action  either  in  law  or  reason  ;  and  it  has 
long  been  clearly  established,  that  an  action  is  maintainable  for  ma- 
licious misrepresentations  of  the  characters  of  menial  servants, — a 

subject  which  will  afterwards  be  more  fully  considered. 
[  *129  ]  In  the  case  of  Seaman  v.  Bigg  (i},  in  the  reign  *of 
Cha.  I.,  it  was  held,  that  the  words,  "  Thou  art  a  coz- 
ening knave,  and  hast  cozened  thy  master  of  a  bushel  of  Barley, 
"  spoken  of  a  servant  in  husbandry,  were  actionable  ;  and  the  court 
said,  that  though  true  it  is,  generally,  an  action  will  not  lie  for  cal- 
ling one  cozening  knave,  yet  where  they  be  spoken  of  one  who  is  a 
servant,  and  accomptant,  and  whose  credit  and  maintenance  depends 
upon  his  faithful  dealing,  and  he  by  such  disgraceful  words  is  de- 

(/)  Thomas  v.  Jackson,  3  Bingham,  104. 

ig)  Mar.  82.     1  Vin.  Ab.  465.  pi.  19.  Sir.  R.  Greenfield's  case. 

(A)  1  Vent.  275.  (i)  Cro.  Car.  480. 


SPECIAL  CHARACTER.  129 

privcd  of  his  livelihood  and  maintenance,  there  is  good  reason  it 
should  leave  an  action  for  loss  of  his  credit  and  means.  So  the 
words,  "  He  (/c)  is  a  cheating  knave,"  applied  to  a  lime-burner  in 
his  employment,  have  been  deemed  to  be  actionable. 

But  a  jobber  (Z)  or  dealer  in  the  public  funds,  is  not  considered 
as  a  known  trader,  and  possessing  a  character  as  such. 

It  does  not  appear  to  be  necessary,  that  the  party  should  gain  his 
living  in  the  character  to  which  the  slander  is  applied  but  it  is  sufficient 
if  he  habitually  act  in  that  character,  and  derive  emolument  from 
it. 

The  rule,  however,  does  not  seem  to  extend  to  representations, 
which  aifect  nothing  more  than  casual  instances,  in  which 
the  plaintiff  has  assumed  *such  a  character.     So  that     [  *180  ] 
words  misrepresenting  the  value  of  a  horse,  or  particular 
piece  of  furniture,  which  the  proprietor  wishes  to  dispose  of,  would 
not  be  actionable,  unless  some  special  damage  resulted  from  them. 

Next  as  to  the  degree  of  certainty  and  precision  requisite  to 
make  the  words  actionable. 

The  only  question  arising  upon  this  point  seems  to  be  this.  Do 
the  words  in  any  degree  prejudice  the  plaintiff  in  his  office,  profes- 
sion, or  employment  ?  If  they  do,  they  are  actionable  ;  the  quan- 
tum of  damage  being  a  mere  question  of  fact  for  the  consideration 
of  the  jury.  Words  in  general  belonging  to  this  class  relate  either 
to  the  plaintiff's  integrity,  his  knowledge,  sJcill,  or  diligence,  his 
credit,  or  to  the  subject  ^natter  in  ivhich  he  deals. 

The  effect  of  such  imputations  will  be  separately  considered. 

To  impute  want  of  integrity  to  any  person  who  holds  an  office  of 
trust  or  of  profit  is  actionable  :  as  to  say  of  a  judge  (w),  that  "  His 
sentence  was  corruptly  given"  [1]. 

Or  of  a  justice  of  the  peace  (n),  "  I  have  often  been  with  him 
for  justice,  but  could  never  get  anything  at  his  hands  but  injus- 
tice" [2]. 

(k)  1  Lev.  115.  Terry  v.  Hooper.  (I)  2  Boa.  &  Pul.  281. 

(m)  Cro.  Eliz.  305.  („)  Cro  :  Car  14. 

[1]  See  Chaddock  v.  Briggs,  13  Mass.  R.  253,  per  Parker,  C.  J. ;  and  Chip- 
man  V.  Cook,  2  Tyler  456. 
[2]  In   Lindsey  v  Smith,  7  Johns.  R.   360,  an  action  was  sustained  for  the 


131        CIVIL  REMEDY— ACTIONABLE  WORDS. 

*0r,  "  He  covereth  and  hideth  felonies  (o),  and  is  not  worthy  to 
be  a  justice  of  the  peace."  [a  a] 
[  'ISl  ]  Where  a  person  hohis  an  office  or  situation,  in  which 
great  trust  and  confidence  must  be  reposed  in  him,  words 
which  impeach  his  integrity  generally,  though  they  contain  no  ex- 
press reference  to  his  office,  are  actionable  ;  since  they  must  neces- 
sarily attach  to  him  in  his  particular  character,  and  virtually  repre- 
sent him  as  unfit  to  hold  that  office  or  situation. 

Thus  it  has  been  held,  that  to  say  of  a  bishop,  "  He  is  a  wicked 
man  (j?),"  is  actionable. 

The  defendant  said  of  a  justice  of  the  peace  and  deputy  lieuten- 
ant (5),  "He  is  a  Jacobite,  and  for  bringing  in  the  Prince  of 
Wales  and  popery."  And  the  words  were  hleld  to  be  actionable, 
though  it  did  not  appear  that  the  speaker  applied  the  words  to  his 
offices,  because  without  any  such  application,  they  imputed  such 
religious  opinions  and  political  principles,  as  rendered  him  in  law  un- 
fit for  those  situations. 

So  where  the  defendant  said  of  the  plaintiff,  who  was  a  justice  of 
the  peace  (r),  "  I  am  in  danger  of  my  life,  my  blood  is  sought,  and 
I  was  like  to  have  been  murdered ;  I  was  at  Sir  J. 
[  *132  ]  Harper's  (the  plaintiff's)  house,  and  John  Harper  *drew 
me  forth  to  see  a  gelding  in  the  stable,  and  then  Thomas 
Beaumond,  Sir  H.  Beaumond's  son,  did  throw  his  dagger  at  me 
twice,  and  thrust  me  through  the  breeches  twice  with  his  rapier  to 
have  killed  me,  all  this  was  done  by  the  instigation  of  Sir  J.  Harper, 
and  I  can  prove  it." 

words  "  Lindsey  had  been  feed  by  Abner  Wood,  and  I  could  do  nothing  when 
the  magistrate  was  in  that  way  against  me."  To  render  the  words  actionable, 
however,  they  must  be  spoken  of  the  plaintiff  in  his  official  character  or  conduct 
Oakley  v.  Farrington,  1  Johns.  Cas.  129. 

(0)  4  Rep.  16. 

[aa]  The  words,  "  you  are  a  rascal,  a  villain,  and  a  liar,"  spoken  of  a  justice 
in  the  execution  of  his  office,  are  actionable,  for  they  import  a  charge  of  acting 
corruptly  and  partially.     Aston  v.  Blagrave,  Str.  617. 

ip)  2  Mod.  159.  (q)  How  v.  Prinn,  Holt,  652. 

(r)  Sir  J.  Harper  v.  Francis  Beaumond,  Cr.  J.  56. 


SPECIAL  CHARACTER.  132 

In  this  case,  although  no  misconduct  in  oflBce  was  particularly 
pointed  out,  it  was  held  that  the  action  well  lay  ;  the  instigation  to 
do  such  an  outrageous  act  being  against  the  plaintiflF's  oath,  and  a 
great  misdemeanor,  for  which  he  was  liable  to  fine  and  to  be  put  out 
of  the  commission. 

The  defendant  said  to  the  plaintiff,  who  was  one  of  the  attorneys 
or  clerks  of  the  King's  Bench,  and  sworn  to  deal  without  corruption 
in  his  office,  "  You  are  well  known  to  be  a  corrupt  man,  and  to  deal 
corruptly."  And  upon  giving  judgment  for  the  plaintiff,  it  was 
said,  quod  sermo  relatus  ad  personam,  intelligi  debet  de  condltione 
personce  (s). 

The  defendant  said  of  the  plaintiff,  who  was  an  attorney,  general- 
ly (0,  "  He  is  a  common  barretor."  After  verdict,  though  it  was 
objected,  that  the  words  were  not  actionable,  having  been  spoken 
of  the  plaintiff  as  a  common  person,  and  not  in  relation 
to  his  office,  yet  the  court  held  *that  the  action  was  main-  [  *133  ] 
tainable ;  for  it  is  a  great  slander  to  an  attorney  to  be 
called  and  accounted  a  common  barretor,  who  is  a  maintainor  of 
brabbles  and  quarrels,  and  said  that  words  are  to  be  construed 
secundum  conditionem  personarum  of  whom  they  are  spoken. 

The  defendant  said  of  an  attorney  (m),  "  Though  art  a  false 
knave,  a  cozening  knave,  and  hast  gotten  all  that  thou  hast  by  coz- 
enage, and  thou  hast  cozened  all  that  have  dealt  with  thee."  And 
the  court  held  that  the  words  were  actionable,  as  touching  the 
plaintiff  in  his  profession. 

An  attorney  brought  an  action  for  the  words  (a;),  "  I  have  taken 
out  a  judge's  warrant  to  tax  Phillip's  (the  plaintiff's)  bill,  I'll  bring 
him  to  book,  and  shall  have  him  struck  off  the  roll."  Lord 
Kenyon,  C.  J.  ruled,  at  nisi  prius,  that  the  words  were  not  ac- 
tionable ;  and  added,  had  the  words  been,  "  He  deserves  to 
have  been  struck  off  the  roll,"  they  would  have  been  actionable. 
With  respect  to  this  distinction,  it  may  be  proper  to  suggest  a 
doubt,  whether  the  words  in  the  principal  case  cited  would  not  in 
common  acceptation  convey  to  the    hearer  the  same  meaning  with 

(s)  4  Rep.  16.  it)  Cro.  Car.  192. 

(tt)  Cro.  Jac.  586.  (r)  Phillipa  v.  Jansen,  2  Esp.  634. 

Vol.  I.  33 


134        CIVIL  REMEDY— ACTIONABLE  WORDS. 

[  *134  ]     the  words  which  the  learned  judge  *is  reported  to  have 

deemed  to  be  actionable,  since  they  seem  as   clearly  to 

evince  the  opinion  of  the  speaker,  that  the  plaintiff  deserved  to  be 

struck  off  the  roll,  and  no  one  would  choose  to  employ  an  attorney 

who  made  exorbitant  charges. 

"Words  imputing  dishonesty  to  a  tradesman,  it  seems,  are  not  ac- 
tionable, unless  they  be  spoken  with  reference  to  trade.  So  that 
to  call  (^)  a  tradesman  a  cheat,  generally,  has  been  held  not  to  be 
actionable.  But  otherwise  to  say,  "  He  (2)  keeps  false  books  ;" 
for  the  words  evidently  relate  to  his  course  of  trading  [1].  So  to 
call  a  tradesman  a  rogue  («)  or  a  cheat,  with  reference  to  his 
trade,  is  actionable.  But  to  say  generally  of  such  a  person,  "  Thou 
(5)  hast  no  more  than  what  thou  hast  got  by  cozening  and  cheat- 
ing," has  been  (c)  held  not  to  be  actionable. 

It  may,  however,  be  doubted,  whether  there  is  any  solid  dis- 
tinction between  these  cases,  since  every  tradesman's  livelihood  de- 
pends in  some  measure  upon  his  general  character  for  honesty  and 
integrity ;  and  it  is  difficult  to  suppose,  that  a  general  imputation 
of  dishonesty,  if  believed,  would  not  operate  to  his  pre- 
[  *135  ]  judice.  *It  seems  that  some  degree  of  trust  and  con- 
fidence must  be  reposed  in  the  plaintiff,  in  order  to  ren- 
der words  reflecting  upon  his  character  for  integrity  actionable. 
Thus  the  words  of  a  carpenter  (^d'),  "  lie  has  charged  Mr.  An. 
drews  for  forty  days'  work,  and  received  the  money  for  the  work, 
that  might  have  been  done  in  ten  days,  and  he  is  a  great  rogue  for 
his  pains,"  were,  after  verdict,  held  not  to  be  actionable. 

The  distinction  seems  to  be  this  :  Where  great  confidence  must 
necessarily  be  reposed,  as  in  an  attorney  or  superintendent,  words 

(y)  3  Salk.  326.  (z)  Holt,  R.  39. 

(a)  Burr.  1688.  (6)  12  Mod.  307. 

(c)  12  Mod.  307.  (d)  Lancaster  u,  French,  Str.  797. 

[1].  Words  charging  the  keeping  false  books  are  actionable  when  spoken  of 
a  merchant,  Backus  v.  Richardson,  5  Johns.  R.  476  ;  or  of  a  blacksmith,  Burtch 
t>.  Nickerson  17  Id.  217;  but  not  when  spoken  of  a  sawyer,  Rathbun  v.  Emigh, 
6  Wendell  407.  The  latter  case  however,  manifestly  proceeded  on  the  ground 
that  the  business  of  a  sawyer  did  not  requiie  the  giving  of  credit  and  keeping 
of  books,  for  it  was  admitted  that  in  such  cases  the  words  would  be  actionable. 


SPECIAL  CHARACTER.  135 

generally  reflecting  upon  his  character  are  actionable  ;  but  where 
mere  ordinary  confidence  is  reposed,  in  the  common  courts  of  hon- 
est dealing,  as  that  a  tradesman  shall  charge  a  fair  price  for  his 
goods,  or  an  artificer,  surveyor,  or  mechanic  for  his  labour,  the  law 
holds  that  the  words  are  not  so  injurious  as  to  bear  an  action  un- 
less they  are  applied  to  the  plaintiff's  trade  or  business  with  cer- 
tainty and  precision. 

So  where  the  office,  profession,  or  employment  of  the  plaintiff,  re- 
quires great  talent  and  high  mental  attainments,  general  words,  im- 
puting want  of  ability,  are  actionable  without  express  reference  to 
his  particular  character,  for  they  necessarily  include  an  ability  to 
discharge  the  duties  of  such  a  situation  ;  but  where  the 
employment  *is  of  a  mere  mechanical  nature,  the  words  [  *136  ] 
to  be  actionable  must  be  applied  to  it  clearly  and  une- 
quivocally. 

Thus,  to  say  of  a  barrister,  (e),  generally,  that  he  is  a  "  dunce,' 
is  actionable,  the  word  dunce  being  commonly  taken  to  mean  a  per^ 
son  of  dull  capacity  who  is  not  fit  to  be  a  lawyer  [1]. 

So,  to  say  of  a  physician  (/),  that  he  is  "  no  scholar,"  is  action- 
able, a  learned  education  being  considered  to  be  an  essential  quali- 
fication in  the  medical  profession. 

To  say  of  a  servant,  that  he  is  a  "  lazy,  idle,  and  impertinent  fel- 
low,"  is  actionable  ;  for  these  words,  though  spoken  without  express 
reference  to  his  service,  cannot  but  affect  his  character  as  a  servant, 
as  no  one  would  be  willing  to  employ  a  person  of  idle  and  imperti- 
nent habits. 

In  general,  however,  the  words  must  be  spoken  with  reference  to 
the  particular  situation  of  the  plaintiff  in  which  case  they  are  action- 
able if  they  impute  any  want  of  knowledge,  skill,  or  diligence,  in 
the  exercise  of  his  office  or  avocation :  as  to  say  of  an  apothecary  (g') 
"  It  is  a  world  of  blood  he  has  to  answer  for  in  this  town :  through 

(e)  Peard  v.  Johnes,  Cro.  Car.  382. 
(/  )  6  Bac.  Ab.  215.   1  Roll.  Ab.  54.  Cro.  Car.  270. 
ig)  Tutty  V.  Alewin,  11  Mod.  221. 

[1]  But  when  the  words  only  impute  ignorance  or  want  or  skill  in  a  particu- 
lar suit,  thy  are  not  per  se  actionable,  Foot  v.  Brown,  8  Johns.  R.  64. 


136         CIVIL  REMEDY— ACTIONABLE  WORDS. 

his  ignorance  he  did  kill  a  woman  and  two  children    at 
[  'IST  ]     Southampton  ;  he  did  kill  J.  P.  *at  Petersfield  ;  he  was 

the  death  of  J.  P. ;  he  has  killed  his  patient  with  phy- 
sic." 

So  (Ji)  where  the  defendant  said  of  a  midwife, "  Many  have  per- 
ished for  her  want  of  skill." 

The  words  spoken  of  a  watchmaker  were,  "  He  (i)  is  a  bungler, 
and  knows  not  how  to  make  a  good  piece  of  work."  After  verdict 
for  the  plaintiff,  the  words,  on  motion  in  arrest  of  judgment,  were 
held  by  the  court  not  to  be  actionable,  not  having  been  laid  to  be  of 
the  plaintiff's  trade,  but  it  was  said  that  had  the  words  been,  "  he 
knows  not  how  to  make  a  good  watch,"  they  would  have  been  action- 
able. It  may,  however,  be  doubted  whether  this  case  would  not  now 
meet  with  a  different  decision  ;  the  point  upon  which  the  court  gave 
judment,  was  in  a  great  measure  technical ;  and  indged  the  averment 
that  the  words  were  spoken  in  derogation  of  the  plaintiff's  workman- 
ship, seems  scarcely  to  be  necessary,  for  if  it  were  believed  that  the 
plaintiff  was  a  bungler,  and  could  not  make  any  piece  of  work  well, 
how  could  it  be  supposed  that  he  could  make  a  good  watch,  a  piece 
of  work  requiring  very  considerable  skill  and  dexterity  [1]. 

The  law  has  shown  great  tenderness  in  protecting  mer- 
[  *138  ]     chants  *and  traders  against  imputations  upon  their  credit, 

which  if  believed  must  necessarily  operate  to  their  seri- 
ous prejudice.  Formerly  (^),  indeed,  it  was  held  that  the  words, 
to  support  an  action,  must  import  bankruptcy :  this  doctrine  has, 
however,  long  been  abandoned  (^),  and  it  seems  that  such  words 

(h)  Flower's  case,  Cro.  Car.  211.  (i)  Redman  v.  Pyne,  1  Mod.  19. 

(k)  Holt.  39. 

(/)  See  Reed  v.  Hudson,  1  Ld.  Ray.  610.  Southarat;.  Allen,  Sir  T.  Ray.  231. 
Whiuington  v.  Gladwin,  5  B.  and  C.  160. 

[1]  In  Tobias  v.  Harland,  4  Wendell  537,  the  plaintiff  being  a  dealer  in  patent 
lever  watches,  made  at  a  particular  manufactory,  the  defendant,  a  dealer  in  the 
same  article  made  at  another  factory,  speaking  of  the  watches  in  which  the 
plaintiff  dealt,  said  they  were  bad,  and  inferior  to  the  watches  in  which  he  dealt. 
Held  OH  demurrer  that  the  action  did  not  lie  ;  that  to  render  words  depreciating 
an  article  in  which  another  deals  actionable  per  se,  they  must  import  deceit  or 
mal-practice  in  the  making  or  vending. 


SPECIAL  CHARACTER.  138 

spoken  of  a  person  in  any  business  are  now  considered  actionable. 
And  it  is  not  essential  to  the  action,  that  the  words  should  impute 
want  of  credit  at  the  time  of  speaking  them.  The  defendant  said, 
"  He  (w)  came  a  broken  merchant  from  Hamburgh  ;"  and  the 
words  were  held  to  be  actionable,  since  the  plaintiff  was  charged 
with  having  beeil  once  broken  et  qui  semel  est  malus  semper  prce- 
sumitiir  esse  malus  in  eodem  genere^  and  that  they  were  a  cause  of 
discrediting  the  plaintiff  in  his  trade,  and  of  injuring  him  in  his  cred- 
it, which  was  a  great  means  of  gain.  And  it  is  not  necessary  that 
the  words  should  be  spoken  with  express  reference  to  the  plain- 
tiff's trade,  since  a  general  charge  of  want  of  credit  necessarily 
includes  the  particular  one,  and  is  equally  pernicious 
with  a  more  precise  *allegation,  thus  to  say  generally  [•ISO] 
of  a  merchant,  that  he  is  "  broken,''  is  actionable,  these 
being  common  and  vulgar  words  of  one  who  fails  in  his  credit  and 
becomes  a  bankrupt.  AVords  of  this  class  are  actionable  when  ap- 
plied to  a  person  carrying  on  a  business  purely  mechanical,  so  that 
to  call  a  dyer  (w)  bankrupt  knave,  is  actionable  [1]. 

And  any  words  which  in  common  acceptation  imply  want  of  cred- 
it are  sufficient,  as  to  say  of  a  tailor  (o)  "  I  heard  you  were  run 
away."  Formerly,  indeed,  it  was  held  that  to  call  a  trader  "  bank- 
ruptly  knave  (p)"  was  not  objectionable  ;  but  the  distinction  be- 
tween words  adjectively  spoken,  and  those  containing  an  express 
and  direct  allegation,  have,  as  has  already  been  observed,  been  long 
deservedly  disregarded. 

So,  to  say  of  a  stock -broker  (5),  that  he  is  "  a  lame  duck,"  is 
actionable. 

So  of  a  trader,  "  You  are  a  sorry  pitiful  fellow  and  a  rogue,  and 
compounded  your  debts  for  5s.  iu  the  pound  (r)." 

(m)  Seycroft  v.  Dunker,  Cro.  Car.  317. 

(n)  Cro.  J.  585. 

(o)  Davis  V.  Lewis,  7  T.  R.  17.  (p)  Cro.  J.  345. 

(q)  Morris  v.  Langdale,  2  B.  &  P.  84.  (r)  Ld.  Raym.  1480.  Str.  762. 

[IJ  The  action  has  been  held  to  lie  for  similar  words  spoken  of  a.  drover, 
Lewis  V.  Hawley,  2  Day  195  ;  also  of  a  brewer,  Hall  v.  Smith,  1  Maule  and 
Sel.  287. 


140         CIVIL  REMEDY— ACTIONABLE  WORDS. 

[  *140  ]         So  where  the  defendant  said  (s),  "  All  is  not  *well 
with  Daniel  Vivian  ;  there  are  many  merchants  who  have 
lately  failed,  and  I  expect  no  otherwise  of  Daniel  Vivian." 

So,  to  say  of  a  pawnbroker  (;;),  "  He  is  a  broken  fellow." 

To  a  milliner  (?-(),  "  You  are  not  worth  a  farthing." 

So  though  words  merely  import  the  speaker's  opinion  ;  as  where 
the  defendant  said  (a;),  "  Two  dyers  are  gone  off,  and  for  ought  I 
know  Harrison  will  be  so  too  within  this  time  twelvemonth." 

So  where  defendant  said  to  an  upholsterer (?/),  "You  are  a 
soldier,  I  saw  you  in  your  red  coat  doing  duty  ;  your  word  is  not  to 
be  taken  :"  the  words  were  held  to  be  actionable,  it  being  a  com* 
raon  practice,  at  the  lime  they  were  spoken,  for  traders  to  protect 
themselves  against  their  creditors  by  a  counterfeit  enlisting,  a  sol- 
dier having  by  act  of  parliament  the  privilege  of  freedom  from 
arrest. 

So  where  the  words  spoken  of  a  carpenter  (z)  ;  "  He  is  broken 
and  run  away,  and  will  never  return  again  ;"  after  ver- 
[  *141  ]  diet  for  the  plaintiff,  *it  was  urged  in  arrest  of  judgment, 
that  the  words  were  not  actionable,  for  though  broken, 
the  plaintiff  was  as  good  a  carpenter  as  ever  ;  but  it  was  answered 
by  the  court,  that  the  credit  which  a  man  has  in  the  Avorld  may  be 
the  means  to  support  his  skill,  for  he  may  not  have  an  opportunity  to 
show  his  workmanship  without  those  materials  wherewith  he  is 
entrusted. 

And  where  the  defendant  said  of  a  husbandman  (a),  "  He  owes 
more  than  he  is  worth  ;  he  is  run  away  :"  the  words  were  held  to 
be  actionable,  though  it  was  objected  that  it  should  not  only  appear 
that  the  plaintiff  had  a  trade,  but  that  he  got  his  living  by  it. 

And  next ;  the  words  are  actionable  when  they  throw  discredit 
upon  the  particular  commodity  in  which  the  party  deals. 

Thus,  to  say  of  a  trader  (6),  "  He  hath  nothing  but  rotten  goods 

(s)  3  Salk.  326.  (/)  Holt.  R.  C52. 

(m)  Cro.  Car.  265,  {x)  10  Mod.  196,  Harrison  u.  Thornborough. 

(y)  Arne  v.  Johnson,  10  Mod.  111. 

(z)  Chapman  v.  Lamphire,  3  Mod.  155. 

(a)  Dobson  v.  Thorstone,  3  Mod.  113.  {b)  Cor.  Car.  570. 


SPECIAL  CHARACTER.  141 

in  his  shop,"  is  actionable  ;  though  it  was  said  in  the  case  referred 
to,  that  had  the  words  been  "  he  hath  rotten  goods  in  his  shop," 
they  would  not  have  supported  the  action,  and  that  the  slander 
consisted  in  sajing  that  he  had  noOiing  but  rotten  goods  in  his 
shop. 

So,  to  tax  a  bookseller  falsely  (c)  with  having  *pub-     [  *142  ] 
lished  an  absurd  poem,  is  actionable  ;  the  evident  tend- 
ancj  of  the  imputation  being  to  injure  him  in  his  business. 

So  where  the  defendant  said  of  the  plaintiff,  who  was  an  innkeep- 
er (c?),  "Deal  not  with  Southam,  for  he  is  broken,  and  there  is 
neither  entertainment  for  man  nor  horse." 

And  words  imputing  insolvency  to  an  innkeeper  are  actionable, 
though  at  the  time  the  words  were  spoken  he  was  not  subject  to  the 
bankrupt  laws  (e). 

So  a  false  and  malicious  account  (/)  of  the  performance  at  a 
place  of  public  amusement  will  support  an  action. 

So  where  the  defendant,  who  was  printer  of  a  newspaper,  called 
the  Oracle,  published  the  following  paragraph  concerning  the  True 
Briton  newspaper,  of  which  the  plaintiff  was  proprietor  : 

"  Times  v.  True  Briton  (^). 

"  In  a  morning  paper  of  yesterday  was  given  the  following  char- 
acter of  the  True  Briton : — that '  It  was  the  most  vulgar,  ignorant, 
and  scurrilous  journal  ever  published  in  Great  Britain.'  To  the 
above  assertion  we  assent,  and  to  this  account  we  add, 
that  the  first  proprietors  abandoned  it,  and  *that  it  is  the  [  *143  ] 
lowest  now  in  circulation,  and  we  submit  the  fact  to  the 
consideration  of  advertisers." 

It  was  held  by  Lord  Kenyon  at  Nisi  Prius,  that  the  latter  words 
of  the  paragraph,  as  affecting  the  sale  of  the  paper  and  the  profits 
made  by  advertising,  were  actionable. 

Where  the  plaintiff  was  a  butcher  (A),  and  brought  his-  action  for 

(c)  Tabart  v.  Tipper,  1  Camp.  N.  P.  350.  (d)  3  Salk.  326. 

(e)  Whittington  v.  Gladwin,  5.  B.  &  C  150. 
(/)  Dibdint).  Swan  and  Bostock,  1  Esp.  27. 
(g)  Heriot  v.  Stewart.  1  Esp.  437. 
(A)  Tassan  v,  Rogers,  2  Salk.  693. 


143        CIVIL  REMEDY—ACTIONABLE  WORDS. 

words  taxing  him  with  having  exposed  to  sale  the  flesh  of  a  cow 
which  died  in  calving,  it  was  held  after  verdict,  that  the  words  were 
not  actionable,  even  though  special  damage  was  laid  and  proved. 
This  case  seems,  however,  to  be  very  loosely  reported,  and  is  not 
supported  by  either  analogy  or  principle. 

Unless  words  affecting  the  plaintiff's  means  of  livelihood  fall  with- 
in one  of  the  foregoing  descriptions,  it  may  be  concluded  that  they 
are  not  actionable. 

The  defendant  said  of  the  plaintiff,  who  taught  girls  to  dance, 
"  that  she  was  an  hermaphrodite  (O5"  3,nd  it  was  held  that  the 
words  were  not  actionable,  and  that  it  was  no  scandal  to  her  pro- 
fession to  say  that  she  was  an  hermaphrodite,  because  men  usually 
teach  young  women  to  dance. 

(i)  3  Salk.  397. 


CHAPTER  IV. 


Where  the  words  tend  to  the  party's  disinherison  or  af- 
fect HIS  Title  to  Land. 

Words  falling  -witliin  this  division  either  affect  the 
probability  of  the  plaintiff's  succeeding  to  an  estate  in     [  •142  ] 
future,  or  impeach  a  title  -which  has  already  accrued. 

Instances  of  the  former  class,  ■where  damages  have  been  allowed 
to  be  recovered  on  account  of  the  manifest  tendency  of  the  imputa- 
tion to  defeat  the  plaintiff's  expectations,  are  exceedingly  rare,  and 
seem  to  have  been  confined  to  words  impeaching  the  legitimacy  of 
the  birth  of  an  heir  apparent. 

The  defendant  (a)  said  to  the  plaintiff,  who  was  heir  apparent  to 
his  father  and  uncle,  "  Thou  art  a  bastard."  After  verdict  for  the 
plaintiff,  the  court,  on  motion  in  arrest  of  judgment,  held  that  the 
action  was  maintainable,  since  by  reason  of  the  words 
the  plaintiff  might  be  in  disgrace  with  *his  father  and  [  *143  ] 
his  uncle,  and  they  conceiving  a  jealousy  of  him  touch- 
ing the  same,  might  possibly  disinherit  him,  and  that  though  they 
eventually  should  not,  yet  that  the  action  well  lay  for  the  damage 
which  might  come  ;  and  the  cases  of  Vaughan  v.  Leigh,  and  of 
Banister  v.  Banister  (6),  were  cited  by  Jones,  J.  as  in  point. 

In  the  first  of  these  cases  (c)  the  plaintiff  showed  that  land  had 

(a)  Humphreys  v.  Stanfield,  Cro.  Car.  469.  Jo.  388.  Godb.  451. 

(J)  4  Cro.  17.  (c)  Cro.  J.  215.  by  the  name  of  Vaughan  v,  Ellis, 

Vol.  I.  34 


143        CIVIL  tlEMEDY— ACTIONABLE  WORDS. 

been  given  in  tail  to  his  grandfather,  and  that  his  father  had  divers 
sons,  whereof  he  was  the  youngest,  and  his  eldest  brothers  living. 
That  a  certain  person  offered  to  buy  the  land,  and  was  willing  to 
give  him  such  a  sum  of  money  for  his  title,  and  by  reason  of  tho 
words  refused  to  give  him  any  thing.  After  judgment  for  the 
plaintiff  in  the  Exchequer,  it  was  assigned  for  error,  that  it  appeared 
by  tho  plaintiff's  own  showing  that  he  had  not  any  present  title,  and 
therefore  no  cause  of  action.  But  the  two  chief  justices  conceived 
that  although  he  had  not  any  present  title,  it  appeared  that  he  had 
a  possibility  of  inheriting  the  lands,  and  that  being  offered  a  sum  of 
money  to  join  in  the  assurance,  although  he  had  not  any  present 
title,  yet  by  reason  of  the  words  he  had  a  present  dam- 
[  *144  ]  age,  and  in  future  might  receive  prejudice  *thereby  in 
case  he  were  to  claim  the  lands  by  descent. 

This  case,  though  cited  as  an  authority  for  the  former  decision, 
does  not  warrant  it  to  the  full  extent,  for  in  the  latter  a  loss  had 
actually  accrued  to  the  plaintiff  in  consequence  of  the  words ;  in 
the  former  the  supposed  prejudice  consisted  in  the  probability  that 
the  expectation  of  the  heir  apparent  would  be  defeated. 

In  the  case  of  Tamer  v.  Sterling  (c?),  it  was  said  by  the  court, 
"  The  law  gives  an  action  for  but  a  possibility  of  damage,  as  an 
action  lies  for  calling  an  heir  apparent  bastard." 

In  an  earlier  case  (e)  the  court  observed,  "  The  word  bastard  is 
determinable  by  the  Spiritual  Court,  but  if  the  plaintiff  add  farther 
words  to  entitle  himself  as  heir,  or  show  some  'possibility  of  being 
heir,  this  shall  make  the  same  words  calling  him  bastard  to  be  ac- 
tionable. 

The  decisions  upon  this  point  do  not,  however,  appear  to  have 
been  uniform  ;  in  the  case  of  Turner  v.  Sterling  (/),  above  cited, 
Vaughan,  J.  said,  "  I  take  it  not  to  be  actionable  to  call  a  man  a 
bastard  whilst  his  father  is  alive,  the  books  are  cross  in 
[  *145  ]  it ;  nay,  if  lands  had  *descended,  I  doubt  whether  it 
would  be  actionable  any  more  than  to  say  one  has  no 
title  to  land." 

(d)  2  Vent.  26.     Vaughan,  J.  dissent.  (e)  2  Buls.  90. 

(/)  2  Vent.  26.     See  also  1  Roll.  Abr.  37.  pi.  18. 


DISINHERISON,  &c.  145 

The  last  express  decision  upon  the  point  appears  to  be  that  of 
Sumphreys  v.  Stanfield  (//),  already  referred  to,  where  it  was  de- 
cided that  words  which  alleged  that  an  heir  apparent  was  a  bastard, 
were  actionable. 

"Words  impeaching  the  plaintiff's  present  title  to  lands,  have  in 
many  of  the  older  cases  been  deemed  to  be  actionable  without 
proof  of  special  damage. 

Thus,  where  a  remainder-man  (Ji)  brought  an  action  against  the 
defendant  for  saying  that  the  tenant  in  tail  had  issue  one  D.  who 
was  then  alive,  it  was  held  that  the  action  was  maintainable. 

It  appears,  however  (^),  from  a  copious  class  of  decisions,  that 
no  action  can  be  supported  for  words  affecting  the  present  title  of 
a  plaintiff  to  an  estate,  without  showing  that  some  special  damage 
and  inconvenience  has  resulted  from  them,  as  that  he  was  prevent- 
ed from  selling  or  making  some  advantagous  disposition 
of  it :  the  particular  *nature  of  such  specific  prejudice  [  *146  ] 
will  be  hereafter  considered  {k) . 

Although  the  numerous  decisions  upon  the  subject  seem  to  leave 
no  doubt  that  words  reflecting  upon  a  party's  present  title  must, 
to  give  a  right  of  action,  be  attended  with  special  damage,  it  does 
not  follow  as  an  immediate  and  necessary  consequence  of  this  doc- 
trine, that  imputations  immediately  tending  to  defeat  the  prospects 
of  an  heir  apparent,  are  not  in  themselves  actionable,  though  it 
appears  at  first  sight  somewhat  strange  to  say  that  it  can  be  con- 
sidered more  prejudicial  to  impeach  a  title  resting  merely  in  ex- 
pectancy, than  to  derogate  from  one  already  existing.  There  is, 
however,  a  plain  line  of  distinction  between  the  two  cases.  Where 
lands  have  already  descended  to  the  heir,  to  call  him  bastard,  can 
work  Utile  prejudice  ;  the  false  imputation  cannot  divest  the  estate, 
though  it  may  involve  the  owner  in  litigation,  for  which  special 
damage  he  is  entitled  to  his  remedy  ;  but  reflections  of  this  nature, 
when  cast  upon  an  heir  apparent,  may  produce  consequences  infi- 

(g)  Cro.  Car.  469. 

{h)  Bliss  V.  Stafford,  Ow.  27.     Mo.  188.     Jenk.  247. 

(i)  Cro.  Eliz.  196.  3  Keb.  153.    1  Vin.  Ab.  553.  Sty.  169.  176.  Palm.  529. 
Snede  v.  Badley,  3  Buls.  74. 
(k)  See  title  Special  Damage 


146        CIVIL  REMEDY-ACTIONABLE  WORDS. 

nitely  more  serious,  for  they  may  induce  the  ancestor  to  disinherit 

the  progeny  which  he  conceives  to  be  spurious. 
[  *147  ]  la  the  former  case  the  evil  resulting  from  the  'slander 
can  be  but  slight  and  temporary ;  in  the  latter  it  may 
prove  utterly  irremediable.  The  cases  relating  to  words  of  the 
latter  description  are  of  considerable  antiquity  and  of  rare  occur- 
rence, and  though  they  certainly  carry  the  doctrine  of  presumptive 
and  anticipative  loss  to  a  great  extent,  yet  they  seem  to  be  support- 
ed and  warranted  by  the  application  of  sound  and  general  prmciples 
to  the  peculiar  exigency  of  the  case. 


CHAPTER  V. 


Where  the  Slander  is  propagated  by   Printing,  Writing, 

OR  Signs. 

Besides  the  communications  whicli  have  been  enumerated  under 
the  preceding  divisions,  many  have  been  deemed  to  be 
intrinsically  actionable,  although  unattended  with  special     [  *148  ] 
damage,  on  account  of  the  modem  which  they  have  been 
effected. 

Observations  upon  this  class  of  cases,  relate,  either  to  the  reasons 
and  authorities  for  this  distinction,  or  to  the  extent  to  which  it  has 
been  carried. 

First,  as  to  the  reasons  and  authorities  upon  which  the  distinction 
is  founded. 

It  has  been  said  (a)  that  "  slander  in  writing  has  at  all  times, 
and  with  good  reason,  been  punished  in  a  more  exemplary  manner 
than  slanderous  words,  for  as  it  has  a  greater  tendency  to  provoke 
men  to  breaches  of  the  peace,  quarrels,  and  murders,  it  is  of  much 
more  dangerous  consequence  to  society.  Words,  which  are  fre- 
quently the  effect  of  a  sudden  gust  of  passion,  may 
•soon  be  buried  in  oblivion;  but  slander  which  is  com-  [  *149  ] 
mitted  to  writing,  besides  that  the  author  is  actuated  by 
more  deliberate  malice,  is  for  the  most  part  so  lasting  as  to  be 
scarcely  ever  forgiven." 

{a)  6  Bac.  Ab.  202,  tit.  Slander. 


149  CIVIL  REMEDY : 

And,  that  "  (5)  written  slander  hereby  receives  an  aggravation, 
in  that  it  is  presumed  to  have  been  entered  upon  with  coolness  and 
deliberation,  and  to  continue  longer  and  propagate  wider  and  farther 
than  any  other  scandal." 

These  reasons  embrace  three  distinct  points : 

1.  The  greater  degree  of  danger  to  the  public  peace. 

2.  The  greater  degree  of  malice  in  the  author  of  the  scandal. 

3.  The  increased  detriment  to  the  object  of  the  slander  from  its 
more  extended  circulation  and  duration. 

In  the  first  place,  although  the  apprehension  of  danger  to  the 
public  peace  may  furnish  a  sufficient  ground  for  subjecting  the 
publisher  of  a  libel  to  penal  visitation,  that  is  a  consideration  which 
cannot  at  all  affect  the  right  to  a  civil  remedy  by  action. 

In  the  next  place,  it  is  clear  that  written  slander  may  evince  a 

higher   degree  of  deliberation,  and  therefore  of  malice,  than  that 

which    is  merely  oral ;  it  may,  however,  be  doubted 

[  *150  ]     whether  that   *superior  degree  of  malice  constitutes  a 

sound  and  well  principled  distinction  between  oral  and 

written  slander. 

As  far  as  regards  the  intention  of  the  publisher,  it  seems  to  be 
certain,  that  malice,  in  law,  is  sufficient  to  support  the  action  ;  that 
is,  a  party  is  liable  if  he  voluntarily  publish  that  which  is  injurious 
to  another,  and  occasions  damage  to  him  without  legal  excuse  (c). 
Whether,  then,  the  calumniator  speak  or  write  that  which  is  injuri- 
ous to  another,  malice  in  law  equally  exists,  and  the  mere  degree  of 
mahce,  however  it  may  affect  the  question  of  damages,  does  not,  in 
principle,  constitute  a  distinct  limit  between  that  which  is  actionable 
and  that  which  is  not  so. 

Is  then  the  reason  for  making  written  defamation  actionable  with- 
out special  damage,  where  an  oral  communication  would  not  have 
been  so,  the  increased  detriment  which  may  probably  arise  to  the 
party,  in  consequence  of  the  means  of  publication  which  have  been 
resorted  to  ? 

Such  a  consideration  obviously  applies  rather  to  the  quantum  of 

(b)  4  Bac.  Ab.  449.  5  Co.  125.  Ld.  Ray.  416.  12  Mod.  219. 

(c)  Vide  Preliminary  Discourse,  infra  tit.  Intention,  and  supra,  p.  9. 


LIBEL.  150 

injury  susained  than  to  the  actual  existence  of  damage ;  and  if  any 
legal  damage  can,  in  any  case,  be  presumed  to  have  arisen  from  the 
publication  of  written  slander,  must  not  a  similar  presumption  obtain, 
though  (it  may  be)  to  an  inferior  extent,  when  the  very 
*same  matter  is  published  orally  ?  How  do  the  cases  [  *151  ] 
differ  but  in  degree  ?  The  extent  of  mischief  merely 
affects  the  quantum  of  damages,  and  not  the  right  of  action.  If 
damage  to  an  amount  which  can  be  estimated  by  a  jury  has  been 
sustained,  by  publishing  the  scandal  to  a  hundred  persons,  may  not 
the  damage  be  also  estimated  where  the  publication  has  been  hmited 
to  ten  ?  Whether  a  greater  degree  of  damage  will  accrue  from 
written  than  from  oral  slander,  must  be  casual  and  uncertain ;  words 
spoken  to  a  multitude,  may  be  more  likely  to  injure  their  object, 
than  if  they  had  been  communicated  by  writing  to  one  or  a  few  in- 
dividuals. 

It  is,  however,  to  be  recollected,  that  the  very  presumption  itself, 
the  limitation  of  which  gives  rise  to  this  difficulty  and  apparent  in- 
consistency, is  purely  artificial  and  arbitrary,  and  consequently  its 
limits  are  naturally  of  the  same  description. 

From  the  exigency  of  the  case,  damage  is  presumed  without  proof, 
that  is,  the  communication  is  deemed  to  be  a  substantive  ground  of 
action  not  in  all  cases,  for  so  wide  a  presumption  would  too  much  en- 
courage a  spirit  of  vexatious  litigation,  but  in  cases  where  the  neces- 
sity for  making  such  presumption  is  urgent  and  apparent. 

The  principle,  then,  being  once  admitted,  that  damage  may,  in 
cases  of  exigency,  be  presumed,  and  an  opposite  princi- 
ple of  public  policy  requiring  *that  such  a  presumption  [  *152  ] 
ought  not  to  obtain  generally,  but  should  be  limited  and 
restrained,  it  is  evidently  a  mixed  question  of  expediency,  arising 
from  the  particular  nature  of  any  class  of  cases  on  the  one  hand, 
and  of  public  policy  on  the  other,  what  limitation  shall  be  applied  to 
them.  And  consequently,  although  if  the  question  had  depended 
wholly  upon  intrinsic  reasons,  such  a  distinction  between  oral  and 
written  slander  might  have  been  deemed  incongruous  ;  it  cannot  be 
so  regarded,  when  it  is  considered  that  it  depends  partly  on  consid- 
erations of  extrinsic  policy,  and  it  may  obviously  consist  well   with 


152  CIVIL  REMEDY  : 

sound  legal  policy,  to  extend  the  remedy  where  the  defamation  is  in 
writing,  and  therefore  capable  of  an  extensive,  permanent,  and  mis- 
chievous diffusion,  beyond  those  limits  which  are  assigned  in  case 
of  mere  oral  communications. 

Whether  such  a  distinction  can  be  supported  on  any  just  grounds 
of  reason  or  convenience  has  been  the  subject  of  much  controversy ; 
in  the  last  case  in  which  the  subject  was  judicially  considered,  the 
court  intimated  that  they  supported  the  rule  on  the  ground  of  pre: 
cedent  only  (s). 

The  number  of  actual  decisions  founded  upon  the  difference  be- 
tween oral  and  written  slander  is  exceedingly  small ;  but 
[  *153  ]  the  distinction  itself  has  *been  very  frequently  collateral- 
ly countenanced  and  recognized  by  most  able  and  accom- 
plished judges,  and  is  now  fully  established. 

It  appears  to  have  been  held  in  early  times,  that  a  libel  (c)  on  the 
character  of  a  private  individual  was  punishable  by  way  of  indict- 
ment. 

Sir  Edward  Coke,  in  his  third  Institute  (d),  cites  a  record  of  the 
conviction  of  Adam  de  Ravensworth,  who  was  indicted  in  the  King's 
Bench,  in  the  reign  of  Edward  III.  for  the  making  of  a  libel  in  the 
French  tongue  against  Richard  of  Snowshall,  calling  him  therein  Roy 
de  Raveners,  &c.  and  adds,  "  so  a  libeller,  or  publisher  of  libel, 
committeth  a  public  offence,  and  may  be  indicted  thereof  at  Com- 
mon Law." 

This,  indeed,  was  a  criminal  proceeding,  and  no  instance  of  a  civil 
action  in  case  of  libel  appears  till  long  after ;  it  seems,  however,  to 
have  been  frequently  held  (e),  that  where  a  party  is  indictable  for 
any  written  defamation,  an  action  is  also  maintainable  at  the  suit  of 
the  party  injured. 

(s)  Thorley  v.  Lord  Kerry,  4  Taunt.  355,  infra,  162. 

(c)  It  is  to  be  recollected  that  the  terra  Libel,  in  the  following  pages,  is  used 
to  signify  any  writings,  pictures,  or  other  signs,  tending  to  injure  the  character 
of  an  individual,  or  to  produce  public  disorder. 

{d)  74. 
■  (e)  Skin.  123.  3  Wils.  204.  4  Com.  Dig.  tit.  Libel.  C.  3.  6  Bac.   Ab.  tit. 
Slander,  202.  3  Bl.  Coram.   125.  2  Camp.  C.  511.     It  has,  however,  been  said, 
that  in  some  instances  a  libel  may  be  indictable,  although  it  be  not  actionable. 
3  Mod.  139.  Com.  Dig.  Libel,  A.  2. 


LIBEL.  154 

*In  the  case  o^  Dr.  Edwards  v.  Dr.  Wooton(^f)  [  *154  ] 
in  the  Star  Chamber,  it  appeared  that  Dr.  Wooton  had 
written  to  Dr.  Edwards  a  letter,  containing  scandalous  matter,  to 
which  he  had  subscribed  his  name,  and  that  he  had  likewise  pub- 
lished and  dispersed  a  number  of  copies  of  the  same  letter.  And  it 
was  resolved,  by  the  Lord  Chancellor  Egerton,  the  two  Chief  Jus- 
tices, and  the  whole  court,  that  this  was  a  subtle  and  dangerous 
kind  of  libel,  inasmuch  as  the  writing  a  private  letter,  to  another, 
without  other  publication,  would  not  support  an  action  on  the  case, 
but  that  when  published  to  others,  to  the  scandal  of  the  plaintiff , 
as  it  had  oftentimes  been  adjudged,  an  action  lieth.  And  it  was 
said,  that  although  the  defendant  had  subscribed  his  name  to  the 
letter,  yet  since  it  contained  scandalous  matter,  it  was  to  be  con- 
sidered in  law  as  amounting  to  a  libel.  From  this  case,  though  the 
contents  of  the  letter  in  question  do  not  appear,  the  opinion  of  the 
Lord  Chancellor  and  the  two  Chief  Justices  may  be  collected,  that 
generally,  scandalous  matter  published  in  v/riting  was  a  ground  of 
action. 

Peacock  (^)  exhibited  his  bill  against  Sir  George  Raynal  in  the 
Star-Chamber,  for  a  bill  written  under  these  circumstances  : 

The  plaintiff  was  heir  general  to  Richard  Peacock,  who  was  of 
the  age  of  86  years,  and  had  lands  of  inheritance  to 
•the  value  of  ^800  a  year;  the  defendant,  who  had  [  *155  ] 
married  the  daughter  of  Sir  Edward  Peacock,  who  was 
a  younger  brother  of  Richard  Peacock,  wrote  a  letter  to  Richard 
Peacock,  informing  him  that  the  plaintiff  was  not  the  son  of  a  Pea- 
cock, and  was  a  haunter  of  taverns,  and  that  divers  women  had  fol- 
lowed him  from  London  to  the  place  of  his  dwelling,  that  he  had  a 
desire  to  hear  of  the  death  of  the  said  Richard,  and  that  all  the  in- 
heritance would  not  be  sufficient  to  satisfy  his  debts,  and  many  other 
matters  concerning  his  reputation  and  credit.  And  it  v/as  agreed 
that  this  was  a  libel,  and  for  that  the  defendant  was  fined  to  <£200, 
and  imprisonment,  according  to  the  course  of  the  court ;  and  the 
plaintiff  let  loose  to  the  Common  Laiu  for  his  recompence  for  the 
damages  which  he  had  sustained. 

(/)  12  Rep.  35.  ig)  2  Brownl.  151. 

Vol.  L  .35 


165  CIVIL  REMEDY : 

In  the  case  of  King  v.  Sir  Edivard  Lake,  (Ji),  the  libel  was  con* 
t.ained  in  an  answer  to  a  petition  preferred  by  the  plaintiff  to  the 
House  of  Commons,  and  consisted  of  many  general  reflections  upon 

the  conduct  of  the  plaintiff.  After  verdict  for  the  plain- 
[  *156  ]     tiff,  *it  was  moved  in  arrest  of  judgment,  that  the  terms 

of  the  publication  were  too  general  to  support  an  action  ; 
but  it  was  said  by  Hale,  Chief  Baron,  that  "  Although  such  gen- 
eral words  spoken  once,  without  ivriting  or  publishing  them,  would 
not  be  actionable,  yet  here  they  being  written  and  published,  which 
contains  more  malice  than  if  they  had  been  once  spoken,  they  are 
actionable." 

In  the  case  of  Sir  J.  Austen  v.  Col.  Culpepper  (i),  the  defend- 
ant had  forged  an  order  of  the  Court  of  Chancery,  containing  many 
defamatory  reflections  upon  the  plaintift',  and  at  the  bottom  had 
drawn  the  form  of  a  pillory,  and  subscribed  to  it  the  words,  "  For 
Sir  J.  Austen  and  his  witnesses  by  him  suborned," 

It  was  contended  that  the  aqtion  was  not  maintainable,  since  no 
certain  slander  was  imputed  by  the  words,  and  if  the  words  would 
not  support  the  action,  the  representation  could  not,  since  it  w'as  not 
to  be  inferred  that  the  parties  were  perjured,  and  that  though  for 
setting  up  horns,  &c.  for  the  purpose  of  ridicule,  an  indictment  lay, 
yet  that  no  action  was  maintainable  ;  but  the  court  held  that  an  ac-^ 
Hon  in  such  cases  was  maintainable,  as  well   as  an  indictment,  and 

referred  to  the  case  of  Col.  King  v.  Lake  (A;),  *where 
[  *157  ]     the  plaintiff  had  judgment  in  the  Exchequer.     And  the 

court  added,  that  to  sag  of  any  one  that  he  is  a  dishonest 
man,  would  not  be  actionable  ;  but  that  to  publish  it  or  put  it  on  the 
posts  would  be  actionable,  and  the  plaintiff  had  judgment. 

In  the  case  of  Cropp.  v.  Tilneg  (/),  it  was  said  by  Holt,  C.  J. 
Scandalous  matter  is  not  necessary  to  make  a  libel,  it  is  enough  if 

{h)  Haidr.  470.  See  also  Sir  Baptist  Hick's  case,  Hob.  215.  King  of 
Gray's  Inn  v.  Sir  E.  Lake,  2  Vent.  28.  Harman  v.  Delany,  Str.  888.  Tlie 
court,  in  the  latter  case,  observed,  that  if  bare  words  affecting  a  man  in  his 
trade  were  actionable,  it  would  be  much  stronger  in  the  case  of  a  libel  in  a  pub- 
lic newspaper,  which  is  more  diffusive. 

(i)  Skinner,  123.     2  Show.  314.  {k)  Hardr.  470. 

(/)  3  Salk.  226. 


LIBEL.  157 

the  defendant  induce  an  ill  opinion  to  be  had  of  the  plaintiff,  or 
make  him  contemptible  and  ridiculous  ;  as  for  instance,  an  action  was 
brought  by  the  husband  for  riding  Skimmington  (m)  and  adjudged 
that  it  lay,  because  it  made  him  ridiculous  and  exposed  him." 

In  Bradley  v.  Methivyn  (ii),  which  was  an  action  on  the  case  for 
a  libel.  Lord  Ilardwicke,  C.  J.  observed,  that  "  The  present  case  is 
not  for  words,  but  for  a  libel,  in  which  the  rule  is  different,  for  some 
words  may  by  actionable  or  prosecuted  by  way  of  indictment,  which 
would  not  be  so  if  spoken  only,  for  the  crime  in  a  libel  does  not  arise 
merely  from  the  scandal,  but  from  the  tendency  which 
it  has  to  occasion  a  breach  of  *the  peace,  by  making  the  [  *158  ] 
scandal  more  public  and  lasting  and  spreading  it  abroad, 
which  was  determined  in  this  court  in  the  case  of  King  v.  Griffin, 
Hil.  7.  G.  11." 

In  Villers  v.  Monsley  (o),  the  libel  charged  the  plaintiff  with 
having  the  itch  :  upon  motion  in  arrest  of  judgment,  Wilmot,  C.  J. 
observed,  "  If  any  man  deliberately,  or  maliciously,  publish  any 
thing  in  writing  concerning  another  which  renders  him  ridiculous,  or 
tends  to  hinder  manJcind  from  associating  or  having  intercourse 
with  him,  an  action  well  lies  against  such  publisher." 

Bathurst,  J.  "  I  wish  this  matter  was  thoroughly  gone  into  and 
more  solemnly  determined  ;  however,  I  have  no  doubt  at  present, 
but  that  the  writing  or  publishing  any  thing  which  renders  a  man 
ridiculous  is  actionable.  I  repeat  it,  I  wish  there  were  some  more 
solemn  determination  that  the  writing  and  publishing  any  thing 
which  tends  to  make  a  man  ridiculous  or  infamous  ought  to  be 
punished." 

Gould,  J.  "  What  ray  brother  Bathurst  has  said  is  very  material ; 
there  is  a  distinction  between  libels  and  words :  a  hbel  is  punishable 
both  criminally  and  by  action,  when  speaking  the  words  would  not 
be  punishable  either  way,  for  speaking  the  words  rogue  and  rascal 
of  any  one,  *an  action  will  not  lie,  but  if  those  words 
were  written  and  pubhshed  of  any  one,  I  doubt  not  an     [  *159  ] 

(ni)  Mason  v.  Jennings,   Sir  T.  Ray.  401.  contra.  Sed  vid.  1  Show.  314. 
(n)  Selwyn's  Ni.  Pri.  1st  Ed.  925.  n.  2.  B.  R.  M.  10  G  2.  MSS. 
(o)  2  Wils.  403. 


159  CIVIL  REMEDY  : 

action  will  lie.  I  think  the  publishing  any  thing  of  a  man 
that  renders  him  ridiculous,  is  a  libel  and  actionable."  And 
judgment  was  given  for  the  plaintiff  by  the  whole  court,  without 
granting  any  rule  to  show  cause. 

In  J' Anson  v.  Stuart  (p)  tlie  action  was  brought  in  the  Common 
Pleas,  for  publishing  in  the  Morning  Post,  that  "  The  plaintiff  was 
at  the  head  of  a  gang  of  swindlers,  a  common  informer,  and  had 
been  guilty  of  deceiving  and  defrauding  divers  persons  with  whom  he 
had  dealings  and  transactions."  The  plaintiff  demurred  specially 
on  account  of  the  generality  of  the  defendant's  plea,  and  judgment 
havino-  been  given  for  the  defendant  below,  the  plaintiff  carried  the 
matter,  by  wit  of  error,  into  the  Court  of  King's  Bench,  where  the 
same  causes  were  assigned  for  error,  which  before  had  been  alleged 
as  grounds  of  special  demurrer. 

The  defendant  further  contended,  that  the  declaration  was  insuflS- 
cient,  as  the  words  "  common  informer "  were  not  actionable, 
and  the  term  "  Swindler  "  was  jaot  a  legal  term  of  which  the  law 
could  take  notice.  But  Buller,  J.  observed,  "  The  objection  after- 
wards taken  to  the  declaration  *is,  that  the  term  '  swind- 
[  *160  ]  ler '  is  too  general,  and  cannot  be  legally  understood, 
but  Mr.  J.  Aston  formerly  held  otherwise,  for  he  said 
that  the  term  swindling  was  in  general  use, and  that  the  court  could 
not  say  they  were  ignorant  of  it.  But  at  all  events  we  cannot  say 
upon  this  record,  that  we  do  not  understand  the  import  of  it,  for  it 
is  explained  to  be  *  defrauding  divers  persons.'  The  declaration  con- 
tains as  libellous  a  charge  as  can  well  be  imagined." 

This  case  cannot  it  seems  be  considered  as  decided  upon  the  dis- 
tinction in  question,  since  it  seems  to  have  been  the  opinion  of  Mr. 
J.  Buller,  that  the  term  "  swindler,"  as  explained  by  the  subsequent 
words,  was  actionable  without  reference  to  the  mode  of  publica- 
tion (q). 

Zenobio  brought  an  action  against  Axtell  (r)  for  publishing  in  the 

(p)  1  T.  R.  748. 
{q)  In  Saville  v.  Jardine,  2  H.  Bl.  531.  it  was  held  that  the  term  "  swindler  " 
was  not  actionable, 
(r)  6  T.  R.  162. 


LIBEL.  160 

newspaper,  called  the  Courier  de  Londres,  the  following  paragraph, 

"  The  late  famous  Bishop  of  Autun,  to  the   great  satisfaction  of 

all  honest  men,  has  just  received  an  order  to  quit  England  :  the 
same  compliment  has  been  paid  to  an  adventurer,  a  great  gambler, 
■who  calls  himself  the  Count  Zenobio."  After  verdict  for  the  plain- 
tiff, the  defendant  contended,  in  arrest  of  judgment,  that 
the  pubhcation  was  not  libellous  ;  *but  as  there  was  ano-  [  *161  ] 
ther  objection,  which  was  fatal  to  the  declaration,  the 
court  did  not  give  any  opinion  as  to  the  actionable  quahty  of  the 
words. 

In  Bell  V.  Stone  (s)  the  defendant  wrote  the  following  letter  con- 
cerning the  plaintiff,  who  was  a  land  surveyor,  to  one  N.  B.  to  whom 
the  plaintiff  owed  a  large  sum  of  money  : 

"  After  the  communication  I  had  with  your  son  in  your  absence, 
I  but  little  thought  you  would  have  been  made  the  dupe  of  one  of 
the  most  infernal  villains  that  ever  disgraced  human  nature  ;  but  I 
suppose  you  were  deceived  by  those  whom  you  thought  well  of,  and 
whom  he  will  deceive  if  they  will  give  him  an  opportunity ;  I  am 
told  they  are  respectable,  and  how  they  can  be  connected  with  him 
is  the  most  astonishing  thing  to  me.  Mr.  H.  writes  me  you  called 
upon  him,  (meaning  the  plaintiff,)  on  the  subject  of  your  account, 
for  which  the  villain  gave  you  his  note  at  five  months."  Special 
damage  was  laid  in  the  declaration,  but  none  being  proved  at  the 
trial,  the  learned  Judge  who  tried  the  cause  was  of  opinion  that  the 
letter,  unsupported  by  special  damage,  was  not  actionable,  and 
directed  a  verdict  for  the  defendant.  The  counsel  for  the 
plaintiff,  however,  contending  *that  the  letter  itself  was  [  *162  ] 
actionable,  it  was  left  to  the  jury  to  say  what  damages 
they  would  give,  supposing  the  plaintiff  entitled  to  recover,  and  they 
answered,  one  shilling.  A  rule  was  obtained  to  show  cause  why  the 
verdict  for  the  defendant  should  not  be  set  aside,  and  a  verdict  en- 
tered for  the  plaintiff,  on  the  count  containing  the  letter,  for  one 
shilling,  on  the  ground  that  though  the  words  in  that  count  might 
not  be  actionable  if  only  spoken,  yet  that  being  committed  to  writing 
they  were  so. 

(s)  1  Bos.  &  Pul.  331. 


162  CIVIL  REMEDY  : 

Le  Blanc,  Serjt.  was  to  have  shown  cause  against  the  rule,  but  the 
court  expressing  themselves  clearly  of  opinion,  that  any  words  writ- 
ten and  published,  throwing  contumely  on  the  party,  were  actionable, 
the  learned  counsel  declined  arguing  the  point,  and  the  rule  was 
made  absolute  [a  a] . 

Whatever  of  doubt  might,  notwithstanding  the  previous  authori- 
ties, seem  still  to  have  attached  to  this  question,  has  been  removed 
by  the  decision  in  the  Exchequer  Chamber,  in  the  case  of  Thorley  v. 
Lord  Kerry  (f).  Lord  Kerry,  (the  plaintiff  below  and  defendant 
in  error,)  founded  his  action  upon  a  libel,  charging  him  with  being  a 
hypocrite,  and  with  having  used  the  cloak  of  religion  for  unworthy 
purposes.  He  obtained  a  verdict  with  £20  damages,  and  had  judg- 
ment in  the  King's  Bench  without  argument.  A  writ  of 
[  *163  ]  *error  was  brought  in  the  Exchequer  Chamber,  and  after 
very  able  arguments,  in  which  all  the  previous  authorites 
were  considered,  judgment  was  finally  given  for  the  defendant  in 
error.     iSir  J.  Mansfield,  C.  J.  in  delivering  the  opinion  of  the  court, 

[a  a\  In  the  case  of  the  Archbishop  of  Tuam  v.  Robeson,  5  Bingh.  17,  it  was 
held,  that  to  publish,  in  writing,  of  an  archbishop,  that  he  had  attempted  to  con- 
vert a  Catholic  priest  to  become  a  Protestant  clergyman,  by  offers  of  money 
and  preferment  was  actionable.  And  Best,  C.  J.  after  observing,  that  in  Lord 
Kerry  v.  Thorley,  the  distinction  between  oral  and  written  slander  had  been  es- 
tablished too  firmly  to  be  shaken,  observed,  "  according  to  that  case,  in  order  to 
support  such  an  action  for  oral  slander,  something  criminal  must  have  been  im- 
puted ;  but  in  a  libel,  any  tendency  to  bring  a  party  into  contempt  and  ridicule 
is  actionable,  and  in  general  any  charge  of  immoral  conduct,  although  in  mat- 
ters not  punishable  at  law." 

In  the  case  of  Woodward  v.  Dowsing,  2  M.  &  R.  74,  Lord  Tenterden  said, 
"  This  is  a  case  of  written  slander,  in  which  shape,  whatever  tends  to  bring  a 
party  into  public  hatred  and  disgrace,  is  actionable.  Can  any  man  read  this 
libel  without  saying  that  it  charges  the  plaintiff  with  oppressive  conduct?  And 
therefore  it  was  held,  in  that  case,  that  a  written  charge  against  an  overseer,  of 
oppressive  conduct  towards  paupers,  in  compelling  them  to  receive  payment  of 
their  weekly  parish  allowance  in  orders  for  flour  on  a  particular  tradesman  was 
actionable,  though  the  writer  was  mistaken,  in  supposing  that  the  misconduct 
complained  of  was  an  offence  within  the  stat.  55  G.  3.  c.  139.  s.  6. 

In  Clement  v.  Chivis,  in  error  9  B.  and  C.  172,  it  was  held  that  it  was  libel- 
lous and  actionable  to  publish  of  a  coachman,  that  he  had  been  guilty  of  gross 
misconduct,  and  had  insulted  two  females  and  one  gentleman,  who  were  out- 
side, in  a  barefaced  manner. 

(0  4  Taunton,  355. 


LIBEL.  163 

stated  that  the  words,  had  they  merely  been  spoken,  would  not  have 
been  actionable,  and  after  expressly  repudiating  any  distinction  in 
principle  between  oral  and  written  scandal,  intimated  that  the  judg- 
ment of  the  court  in  favour  of  the  defendant  in  error,  was  founded 
entirely  on  the  previous  authorities,  which  estabUshed  a  rule  too  in- 
veterate to  be  overturned  {ii).  [1] 

(u)  His  lordship,  in  giving  judgment,  observed, — "  There  is  no  doubt  that 
this  was  a  libel  for  which  the  plaintiff  in  error  might  have  been  indicted  and 
punished,  because,  though  the  words  impute  no  punishable  crimes,  they  contain 
that  sort  of  imputation  which  is  calculated  to  vilify  a  man,  and  bring  him,  as 
the  books  say,  into  hatred,  contempt,  and  ridicule  ;  for  all  words  of  that  descrip- 
tion an  indictment  lies  :  and  I  should  have  thought  that  the  peace  and  good 
name  of  individuals  were  sufficiently  guarded  by  the  terrors  of  this  criminal 
proceeding  in  such  cases.  The  words,  if  merely  spoken,  would  not  be  of 
themselves  sufficient  to  support  an  action  ;  but  the  question  now  is,  whether  an 
action  will  lie  for  these  words  so  written,  notwithstanding  that  such  an  action 
will  not  lie  for  them  if  spoken  ;  and  I  am  very  sorry  it  was  not  discussed  in  the 
Court  of  King's  Bench,  that  we  might  have  had  the  opinion  of  all  the  twelve 
judges  on  the  point,  whether  there  be  any  distinction  as  to  the  right  of  action 
between  written  and  parol  scandal.  For  myself,  after  having  heard  it  extremely 
well  argued,  and  especially  in  this  case  by  Mr.  Barnewall,  1  cannot  upon  princi- 
ple, make  any  difference  between  words  written  and  words  spoken,  as  to  the 
right  which  arises  on  them  of  bringing  an  action.  For  the  plaintiff  in  error,  it 
has  been  truly  urged  that,  in  the  old  books  and  abridgments,  no  distinction  is 
taken  between  words  written  and  spoken.  But  the  distinction  has  been  made 
between  written  and  spoken  slander  as  far  back  as  Charles  the  Second's  time, 
and  the  difference  has  been  recognized  by  the  courts  for  at  least  a  century  back. 
It  does  not  appear  to  me  that  the  rights  of  parties  to  a  good  character  are  in- 
sufficiently defended  by  the  criminal  remedies  which  the  law  gives,  and  thfe  law 
gives  a  very  ample  field  for  retribution  by  action,  for  words  spoken  in  the  cases 
of  special  damage, — of  words  spoken  of  a  man  in  his  trade  or  profession, — of 
a  man  in  office, — of  a  magistrate  or  officer ;  for  all  these  an  action  lies.  But  for 
more  general  abuse  spoken,  no  action  lies.  In  all  the  arguments,  both  of  the 
judges  and  counsel,  in  almost  all  the  cases  in  which  the  question  has  been 
whether  what  is  contained  in  a  writing  be  the  subject  of  an  action  or  not,  it  has 
been  considered  whether  the  words  if  spoken  would  maintain  an  action.  It  is 
curious  that  they  have  also  adverted  to  the  question,  whether  it  tends  to  pro- 
duce a  breach  of  the  peace,  but  that  is  wholly  irrelevant,  and  is  no  ground  for 
recovering  damages.  So  it  has  been  argued,  that  writing  shows  more  deliberate 
malignity  ;  but  the  same  answer  suffices  that  the  action  is  not  maintainable  upon 


164  CIVIL  REMEDY  : 

*It  is  probable  that  in  early  times  there  was  no  differ- 
[  *164  ]     ence,  as  far  as  concerned  civil  actions,  between  verbal 

and  written  slander ;  no  distinction  *h  made  between  them 
[  *165  ]     neither  in  the  statutes  of  Scandalum  Magnatum  or  in  the 

older  cases  relating  to  the  subject. 

the  ground  of  the  malignity,  but  for  the  damage  sustained.  So  it  is  argued, 
that  written  scandal  is  more  generally  diffused  than  words  spoken,  and  is  there- 
fore actionable  ;  but  an  assertion  made  in  a  public  place,  as  upon  the  Royal 
Exchange  concerning  a  merchant  in  London,  may  be  much  more  extensively 
diffused  than  a  few  printed  papers  dispersed  or  a  private  letter ;  it  is  true  that  a 
newspaper  maybe  very  generally  read,  but  that  is  all  casual.  These  are  the 
arguments  which  prevail  on  my  mind  to  repudiate  the  distinction  between 
written  and  spoken  scandal,  but  that  distinction  has  been  established  by  some  of 
the  greatest  names  known  to  the  law,  Lord  Hardwicke ;  Hale,  1  believe  ;  Holt, 
C.  J.,  and  others.  Lord  Hardwicke,  C.  J.,  especially  has  laid  it  down,  that  an 
action  for  a  libel  may  be  brought  on  words  written,  when  the  words  if  spoken 
would  not  sustain  it.  Comyns  Dig.  tit.  Libel,  referring  to  the  case  in  Fitzg.  122, 
253,  says,  there  is  a  distinction  between  written  and  spoken  scandal,  by  his 
putting  it  down  there,  as  he  does,  as  being  the  law  ;  without  making  any  query 
or  doubt  upon  it,  we  are  led  to  suppose  that  he  was  of  the  same  opinion.  I  do 
not  now  recapitulate  the  cases,  but  we  cannot,  in  opposition  to  them,  venture  to 
lay  down  at  this  day  that  no  action  can  be  maintained  for  any  words  written, 
for  which  an  action  could  not  be  maintained  if  they  were  spoken  ;  upon  these 
grounds,  we  think  the  judgment  of  the  Court  of  King's  Bench  must  be  affirm- 
ed. The  purpose  of  this  action  is  to  recover  a  compensation  for  some  damage 
supposed  to  be  sustained  by  the  plaintiff  by  reason  of  the  libel.  The  tendency 
of  the  libel  to  provoke  a  breach  of  the  peace,  or  the  degree  of  malignity  which 
actuates  the  writer,  has  nothing  to  do  with  the  question.  If  the  matter  were  for 
the  first  time  to  be  decided  at  this  day,  I  should  have  no  hesitation  in  saying, 
that  no  action  could  be  maintained  for  written  scandal  which  could  not  be  main- 
tained for  the  words  if  they  had  been  spoken."  See  also  the  opinion  of  the 
judges  in  the  case  of  Macgregor  v.  Thwaites,  3  B.  and  C.  24. 

[1]  It  is  worthy  of  remark,  that  at  a  period  as  late  as  1812,  when  the  case 
of  Thornley  t».  Lord  Kerry  was  decided,  that  the  distinction  as  to  the  right  of 
action  between  words  written  and  words  spoken  should  still  have  been  the  sub- 
ject of  discussion  by  counsel,  and  of  solemn  adjudication  by  the  court.  In  the 
first  action  for  a  libel  found  in  the  books  of  reports  of  the  State  of  New- York, 
viz:  that  of  Riggs  ?j.  Denniston,  3  Johns.  Cas.  198,  decided  in  1802.  Chan- 
cellor Kent,  then  one  of  the  judges  of  the  Supreme  Court,  in  pronouncing 
the  judgment  of  the  court,  observed  that  the  charges  against  the  plaintiff  were 
clearly  libellous,  because  they  threw  contumely  and  odium  upon  him  in  his  char- 


LIBEL.  166 

The  general  rule  was  probably  imported  from  *the  [  *166  ] 
civil  law.  Bracton  lays  down  the  law  nearly  in  the  lan- 
guage of  the  Institutes :  actio  injuriarum  competit  ei  qui  con- 
tumeliam  vel  injuriam  passus  est  (a;).  It  may  be  inferred,  from 
the  stat.  of  Circumspecte  agatis,  that  in  the  reign  of  Ed.  I.  actions 
for  damages,  in  the  case  of  defamation,  were  common  in  the  tem- 
poral courts  (y) .  Whatever  may  have  been  the  ancient  rules  of 
law  (2),  with  regard  to  slander,  they  were  afterwards  relaxed  (a) 
or  contracted,  as  the  courts  deemed  it  convenient,  until  as  far  as 
regards  oral  slander,  they  were  moulded  into  their  present  form. 

There  was,  however,  little  necessity  for  visiting  written  or  print- 
ed, as  contradistinguished  from  oral  slander,  with  either  civil  or 
penal  censures,  until  the  art  of  printing  was  invented,  and  learn- 
ing had  become  more  general.  The  offence  of  libel  fell  princi- 
pally under  the  jurisdiction  of  the  Star  Chamber,  which,  in  part 
at  least  adopted  the  rules  of  the  civil  law,  and  which,  when  that 
jurisdiction  was  abohshed,  were  imported  into  the  common  law 
practice. 

*The  authorities  already  cited   leave  little  to  be  said  in     [  *167  ] 
relation  to  the  extent  of  the  action  for  slander  communi- 
cated  by  means  of  writing,  printing,  pictures,  or  other  signs. 

acter  as  a  commissioner  of  bankruptcy  ;  instead  of  holding  them  actionable  as 
subjecting  the  plaintiff  to  the  loss  of  his  office.  Such  has  ever  been  the  doc- 
trine of  that  court  ever  since.  In  Van  Ness  v.  Hamilton,  19  Johns.  R.  367, 
Chief  Justice  Spencer  remarked,  "  It  may,  however,  be  observed  in  the  out- 
set, that  there  exists  a  decided  distinction  between  words  spoken  and  written 
slander.  To  maintain  an  action  for  a  libel,  it  is  not  necessary  that  an  indictable 
offence  should  be  imputed  to  the  plaintiff.  If  a  libel  holds  a  party  up  to  public 
scorn,  contempt,  and  ridicule,  it  is  actionable," 

{x)  Bracton  de  Actionibus,  f.  104.  Again,  he  says,  Facta  puniuntur  ut 
furta,  homicidia  ;  scripta,  ut  falsa  et  libelli  famosi.  lb.  f.  105. 

(?/)  Et  in  causa  diffamationis  concessum  fuit  alias,  quod  placita  ilia  teneantur 
in  Curia.  Christianitatus  dummodo  non  petatur  pecunia  sed  agatur  ad  correct- 
ionem  peccati. 

(z)  Vaughan,  C.  J.  2  Vent.  28,  observes,  "  In  the  ancient  books  we  do  not 
meet  with  an  action  for  words  unless  the  slander  concerned  life." 

(a)  Supra,  12,  13,  &c. 

Vol.  I.  36 


167  CIVIL  REMEDY  : 

According  to  ^Lord  Coke  («/),  every  infamous  libel  is  either  in 
writingy  or  without  wnting.  A  scandalous  libel  in  writing  is,  when 
an  epigram,  rhime,  or  other  writing,  is  composed  or  published  to  the 
scandal  or  contumely  of  another,  by  which  his  fame  or  dignity  may 
be  prejudiced. 

Thus  in  the  case  of  Cropp  v.  Tilney  (2),  already  cited,  Lord  C. 
-J.  Holt  said,  that  scandalous  matter  was  not  necessary  to  make  a 
libel,  that  it  was  enough  if  the  defendant  induced  an  ill  opinion  to 
be  had  of  the  plaintiff,  or  made  him  contemptible  and  ridiculous. 
So  according  to  the  doctrine  laid  down  in  Villars  v.  Monsley  (a), 
the  publishing  any  thing  concerning  another  which  renders  him  ri- 
diculous, or  tends  to  hinder  mankind  from  associating  or  having  inter- 
course with  him,  is  actionable.  And,  therefore,  to  pub- 
[  *168  ]  lish  in  writing  of  another  that  he  is  a  rogue  or  a*rascal, 
swindler  or  villain,  is  actionable,  although  the  terms  would 
not  have  been  actionable  had  they  been  merely  spoken.  So  it  is  to 
tax  a  man  by  such  means  with  want  of  honesty,  civility,  humanity  (6) 
or  veracity  (e) .  \a  a] 

But  where  the  defendants  posted  up,  in  a  public  room  the  follow- 
ing notice,  "  The  Rev.  J.  Robinson  (the  plaintiff)and  Mr.  J.  K., 
inhabitants  of  this  lown,  not  being  persons  that  the  proprietors  or 
annual  subscribers  think  it  proper  to  associate  with,  are  excluded 
this  room  :"  it  was  held  that  the  publication  was  not  actionable. 
And  the  ground  of  this  decisioa  seeoQS  to  have  been  this,  that  an  im- 
putation of  such  a  nature  is  not  actionable  unless  it  represent  the 
plaintiff  as  an  improper  person  for  general  society,  but  that  the  al- 
leged libel  did  not  go  to  that  extent ;  it  merely  asserted  the  opinion 

(y)  5  Rep.  125.  3  B.  &  C.  33,  4. 

{z)  3  Salk.  226.  See  also  Villars  v.  Monsley,  2  Wilson,  403.  An-action  is 
maintainable  for  slander,  either  written  or  printed,  provided  the  tendency  of  it  be 
to  bring  a  man  into  hatred,  contempt  or  ridicule.  Per  Bayley,  J.  in  Macgreg- 
or  V.  Thwaites,  3  B.  &  C.  33.  (a)  2  Wils.  403. 

(6)  Villars  v.  Monsley.  2  Wils.  403.  J'Anson  v.  Stuart,  1  T.  R.  748.  Bell  v. 
Stone,  1  B.  &  P.  331.  (c)  Ray.  201. 

[a  a]  It  is  no  defence  to  an  action  for  a  libel  tending  to  make  a  man  ridica 
lous,  that  he  himself  told  the  same  story  to  a  party  of  friends.  Cook  v.  Ward, 
6  Bingh.  409. 


LIBEL.  168 

of  the  defendants,  that  the  parties  excluded  were  not  proper  persons 
to  be  associated  with  by  them,  and  that  might  proceed  from  reasons 
which  did  not  at  all  affect  or  impeach  the  moral  character  of  the 
parties  (c/). 

•The  libel  without  writing  may  be,  1st.     By  pictures,     [  *169  ] 
as  to  paint  the  party  in  any  shameful  or  ignominious  man- 
ner. 

2ndly.  By  signs,  as  to  fix  a  gallows,  or  other  reproachful  or  ig- 
nominious signs,  at  the  party's  door,  or  elsewhere. 

Upon  the  whole,  it  may  be  collected,  that  any  writings,  pictures, 
or  signs,  which  derogate  from  the  character  of  an  individual,  by  im- 
puting to  him  either  bad  actions  or  vicious  principles,  or  which  di- 
minish his  respectability  and  abridge  his  comforts,  by  exposing  him 
to  disgrace  and  ridicule,  are  actionable,  without  proof  of  special 
damage  ;  in  short,  that  an  action  lies  for  amj  false,  malicious,  and 
Personal  imputation,  effected  hy  such  means,  and  tending  to  alter 
the  party's  situation  in  society  for  the  worse. 

This  rule,  though  apparently  very  wide  and  comprehensive,  can- 
not be  considered  to  be  more  extensive  than  the  justice  of  the  case 
demands.  No  man,  abstractedly,  has  a  right  to  lessen  the  comforts 
or  enjoyments  of  another  ;  and  when  he  does  it  deliberately,  wan. 
tonly,  and  maliciously,  it  would  be  an  insult  to  common  sense  to 
contend,  that  he  is  not  bound,  upon  the  plainest  grounds  of  pol- 
icy and  justice,  to  make  compensation  for  the  mischief  so  occasion- 
ed :  and  no  inconvenience  can  result  from  the  rule  ;  it 
must  be  recollected,  that  the  only  question  at  *present  is,  [  *170  ] 
as  to  the  nature  of  the  damage  which  must  have  been 
sustained  to  make  the  scandal  actionable  :  this  damage  is,  however, 
but  one  of  two  essential  requisites  for  the  supporting  an  action. 
To  render  the  right  complete,  such  damage  must  have  been  oc- 
casioned, as  will  afterwards  be  seen,  by  the  malicious  act  of  the 
defendant.  This  further  requisite,  of  malice,  that  is  of  malice  in 
the   legal  sense  of  the  term,  precludes  litigation  in  all  cases  where 

(d)  As  by  publishing  of  a  tradesmen,  that  he  shoots  out  of  a  leathern  gun, 
Herman  v.  Delany,  2  Str.  898.  Raymond,  289.  Fitzg.  121. 

(e)  Robinson  v.  Jermyn,!  Price,  11. 


170  CIVIL  REMEDY  : 

the  party  has  acted  in  the  discharge  of  any  legal  or  moral  duty, 
or  in  the  fair  and  conscientious  performance  of  his  part  in  any 
transaction  arising  out  of  the  ordinary  business  of  life,  without  a 
deviation  for  malevolent  purposes,  and  confines  the  action  to  those 
instances  in  which  the  mischief  is  attributable  either  to  mere  malice 
of  heart,  or  to  a  wanton  and  guilty  disregard  of  the  feelings  and 
interests  of  others. 

It  is  said,  by  the  learned  author  of  the  commentaries,  that  (/), 
"  as  to  signs  or  pictures,  it  seems  necessary  always  to  show,  by 
proper  innuendos  and  averments  of  the  defendant's  meaning,  the 
import  and  application  of  the  scandal,  and  that  some  sjjecial  dam. 
age  has  followed ;  otherwise  it  cannot  appear  that  such  libel  by 
pictures,  was  understood  to   be  levelled  at  the  plaintiff,  or  that  it 
was  attended  with  ant/  actionable  consequences."      It 
[  *171  ]     seems,  however,  to  be  very  *difficult  to  conceive  any 
sound  distinction  between  written  and  painted  libels. 
A  man  may  be  as  successfully  exposed  to  ridicule  by  a  carica- 
ture painting,  as  by  any  written  misrepresentation  ;  and  the  object 
of  the  defendant  may  be  as  clearly  manifested  in  the  latter  case, 
as  the  former.     The  difficulty,  indeed,  of  proving  the  plaintiff  to 
be  the  person  aimed  at,  may,  in  some   instances,  be  greater  in  the 
latter  case ;  but  when  the  doubt  as  to  the  defendant's  application 
of  the  calumny  has  been  overcome,  there  seems  to  be  no  room  for 
further  distinction. 

The  pencil  of  the  caricaturist  is  frequently  an  instrument  of  ridi- 
cule more  powerful  than  the  press  ;  and  it  is  not  easy  to  conceive  an 
imputation  which  an  ingenious  artist  would  not  be  able  successfully, 
to  communicate  to  minds  of  even  the  meanest  capacity.  A  man  may 
be  effectually  held  up  as  the  object  of  ridicule,  contempt,  or  hatred 
by  means  of  a  picture,  as  by  the  most  laboured  form  of  words : 
in  legal  consideration,  the  only  question  is,  whether  the  mode  of 
defamation  which  has  been  adopted  be  capable  of  conveying  that 
meaning  which  is  detrimental  to  the  plaintiff  ?  If,  in  fact,  such 
modes   be  equally  distributable,  and   equally  durable, —  in  short, 

(/)  3  Bl.  Com.  126. 


LIBEL.  172 

equally  mischievous  in  every  respect,  they  cannot  be  con- 
sidered as  distinguishable,  for  legal  *purposes,  upon  any     [  *172  ] 
principle  of  reason  and  good  sense  ;  and  no  such  dis- 
tinction is  to  be  found   in  the  reports.     It  -was  expressly  held   by 
Holt,  C.  J.  that  "  In  case  upon  libel  it  is  suflScient  if  the  [matter 
be  reflecting  (^)  ;  as  to  'paint  a  man  in  any  disgraceful  situation." 

The  plaintiff  (/*)  brought  an  action  of  trespass  against  the  de- 
fendant for  destroying  a  picture  of  the  plaintiff's.  Upon  the  trial 
it  appeared  that  the  picture  in  question,  entitled  La  Belle  et  La 
Bete,  was  a  caricature  representation  of  a  gentlemen  and  his  wife, 
who  was  sister  to  the  defendant,  and  that  it  had  been  publicly  ex- 
hibited for  money  till  the  defendant  cut  it  in  pieces.  The  plaintiff 
insisted  that  he  was  entitled  to  the  full  value  of  the  picture,  together 
with  a  compensation  for  the  loss  of  the  exhibition.  The  defendant 
contended  that  it  was  a  public  nuisance,  which  every  one  had  a  right 
to  abate  by  destroying  the  picture. 

Lord  Ellenborough,  C.  J.     "  The  only  plea  upon  the  record  be- 
ing the  general  issue  of  '  not  guilty,'  it  is  unnecessary  to  consider 
whether  the  destruction  of  this  picture  might  or  might  not 
have  been  justified.     If  it  was  a  libel  upon  the  *person3     [  *173  ] 
introduced  into  it,  the  law  cannot  consider  it  valuable  as 
a  picture.     Upon  an  application  to  the  Lord  Chancellor,  he  would 
have  granted  an  injunction  against  its  exhibition  ;  and  the  plaintiff 
was  both  civilly  and  criminally  liable  for  having  exhibited  it."[l] 

There  remains  a  class  of  communications  differing  from  those  last 
adverted  to,  and  which,  though  accompanied  with  circumstances  of 
cooler  deliberation  and  more  settled  purpose  than  words  merely 
spoken,  are  not  calculated  to  produce  such  lasting  and  widely  ex- 
tended consequences  as  those  effected  by  writings  or  pictures. 

The  vulgar  custom  of  riding  Skimmington  (i)  and  the  practice  of 

(§•)  11  Mod.  99.  See  also  2  Hawk.  PI.  C.  c.  73.  s.  2.  5  Co.  125.  Skinner, 
123.  3  Keb.  378. 

{h)  Du  Best  V.  Beresford,  2  Camp.  Eep.  511. 

[1]  See  Eden  on  Injunctions,  ch.  14,  where  the  opinion  of  Lord  Ellenborough 
as  to  the  granting  of  an  injunction  is  questioned,  and  the  cases  on  the  subject 
reviewed. 

(i)  Supra.     See  Lord  Holt's  dictum  in  Cropp  v.  Tilney,  3  Salk.  226.     And 


173  CIVIL  REMEDY  : 

carrying  or  burning  the  effigies  of  persons  intended  to  be  held  out 
as  public  objects  of  disgrace  and  ridicule,  are  instances  of  this 
description.  The  impressions  made  by  such  proceedings  are  natural- 
ly more  lasting,  and  are  likely  to  produce  a  greater  degree  of  mis- 
chief than  words  merely  spoken  ;  and  yet  the  calumny  is  not  so 

durable  as  if  it  had  been  conveyed  in  print  or  in  writing. 
[  *174  ]     As,  however,  these  are  means  by  *which  a  man  may  be 

rendered,  in  many  instances,  contemptible  and  ridiculous, 
and  in  others  may  be  exposed  to  the  serious  effects  of  popular  in- 
dignation and  resentment, — as  the  act  of  the  defendant  is  more 
studied  and  deliberate,  and  the  consequences  more  mischievous  than 
those  likely  to  be  occasioned  by  mere  oral  slander,  it  seems  to  be 
clear  that  such  representations  are  actionable,  as  falling  within  the 
same  consideration  with  the  other  cases  which  have  formed  the  sub- 
ject of  the  present  chapter. 

Thus  an  action  has  been  supported  for  setting  up  a  lamp  adjoining 
to  the  dwelling-house  of  the  plaintiff,  and  keeping  it  burning  in  the 
day-time,  with  intent  to  defame  the  plaintiff  as  the  keeper  of  a 
brothel,  (/c) 

see  Austin  v.  Culpepper,  1  Show.  314,  where  the  court  cited  the  case  of  Sir 
William  Bolton  v.  Dean,  where  an  action  was  maintained  for  scandalizing  the 
plaintiff,  by  carrying  a  fellow  about  with  horns,  bowing  at  the  plaintiff's  door, 
&e. 

(k)  Jeffries  v.  Duncombe,  11  East,  326,  and  see  Spall  v.  Massey,  2  Starkie's 
C.  559. 


CHAPTEE  VI 


Of  Scandalum  Magnatum, 

Words  spoken  in  derogation  of  a  peer  or  judge,  or  other  great 
officer  of  the  realm,  are  usually  called  Scandalum  Magnatum  ;  and 
though  they  be  such  as  would  not  be  actionable  when  spoken  of  a 
private  person,  yet  whea  apphed  to  persons  of  high  rank  and  digni- 
ty, they  constitute  a  more  heinous  injury,  which  is  redressed  by  an 
action  on  the  case  founded  on  many  ancient  statutes,  as  well  on  be- 
half of  the  crown,  to  inflict  the  punishment  of  imprisonment  on  the 
slanderer,  as  on  the  behalf  of  the  party  to  recover  damages  (a)  for 
the  injury  sustained. 

Under  this  division  will  be  considered, 

1.  The  grounds  of  the  action. 

2.  The  parties  entitled  to  maintain  it. 

3.  The  nature  of  the  words  which  will  support  it. 

The  statute  (5)  3  Ed.  1.  c.  34.  after  premising  *that  [  *11Q  ] 
"  Forasmuch  as  there  have  been  oftentimes  found  in  the 
country  devisors  of  tales,  whereby  discord,  or  occasion  of  discord, 
hath  many  times  arisen  between  the  king  and  his  people,  or  great 
men  of  the  realm,"  enacts,  "  that  from  henceforth  none  be  so  hardy 
to  tell  or  publish  SiUj  false  news  or  tales,  whereby  discord,  or  occa- 
sion of  discord,  or  slander,  may  grow   between   the  king  and  his 

(a)  3  Blac  Com.  123. 

{b)  For  the  history  of  these  statutes,  see  2  Mod.  152.  Barrington  on  the 
Penal  Statutes.     3  Reeve's  Hist,  and  1  Pari.  Hist. 


176  CIVIL  REMEDY : 

people  or  the  great  men  of  the  realm  ;  and  he  that  doth  so,  shall  be 
taken  and  kept  in,  until  he  hath  brought  him  into  court  which  was 
the  first  author  of  the  tale." 

By  2  R.  2.  St.  1.  c.  5.  "  Of  devisors  oi  false  neivs  and  of  hor- 
rible and  false  lies,  of  prelates,  dukes,  earls,  barons,  and  other 
nobles  and  great  men  of  the  realm  ;  and  also  of  the  chancellor, 
treasurer,  clerk  of  the  privy  seal,  steward  of  the  king's  house,  jus- 
tices of  the  one  bench  or  of  the  other,  and  of  other  great  officers  of 
the  realm,  of  things  which  by  the  said  prelates,  lords,  and  officers 
aforesaid,  were  never  spoken,  done,  nor  thought,  in  great  slander  of 
the  said  prelates,  lords,  nobles,  and  officers,  whereby  debates  and 
discords  might  arise  betwixt  the  said  lords,  or  between  the  lords  and 
commons  (which  God  forbid)',  and  whereof  great  peril  and  mischief 
might  come  to  all  the  realm,  and  quick  subversion  and  destruction 
of  the  said  realm,  if  due  remedy  be  not  provided.  It  is 
[  '177  ]  straitly  defended  upon  grievous  *pain,  for  to  eschew  the 
said  damages  and  perils,  that  from  henceforth  none  be  so 
hardy  to  devise,  speak,  or  to  tell  any  false  news,  lies,  or  other  such 
false  things,  of  prelates,  lords,  and  of  others  aforesaid,  whereof 
discord  or  any  slander  might  rise  within  the  said  realm  ;  and  he 
that  doth  the  same  shall  incur  and  have  the  pain  another  time  or- 
dained thereof  by  the  statute  of  Westminster  the  first,  which  wiU, 
that  he  be  taken  and  imprisoned  till  he  have  found  him  of  whom  the 
word  was  moved." 

Also  by  the  12  R.  2.  c.  11. — "  Item.  Whereas  it  is  contained  aa 
well  in  the  statute  of  Westminster  the  first,  as  the  statute  made  at 
Gloucester,  the  second  year  of  the  reign  of  our  Lord  the  king  that 
now  is,  that  none  be  so  hardy  to  invent,  to  say,  or  to  teli  any  false 
news,  lies,  or  such  other  false  things,  of  the  prelates,  dukes,  earls, 
barons,  and  other  nobles  and  great  men  of  the  realm,  and  also  of 
the  chancellor,  treasurer,  clerk  of  the  privy  seal,  and  stewards  of 
the  king's  house,  the  justices  of  the  one  bench  or  of  the  other,  and 
other  great  officers'of  the  realm;  and  he  that  doth  so  shall  be  taken 
and  imprisoned  till  he  hath  found  him  of  whom  the  speech  shall  be 
moved.  It  is  accorded  and  agreed  in  this  parliament,  that  when 
any  such  is  taken  and  imprisoned,  and  cannot  find  him  by  whom 


SCANDALUM  MAGNATUM.  17T 

the  speech  be  moved,  as  before  is  said,  that  he  he  punished  by  the 
advice  of  the  council,  notwithstanding  the  said  statutes." 

*It  does  not  appear  to  be  very  clear,  whether,  before     [  *178  ] 
these  statutes,  any  words   would  have  been  actionable 
when  applied  to  a  peer  or   other  person  of  high  rank  and  dignity, 
which  would  not  have  been  deemed  so  in  the  case  of  a  private  per- 
son (c) 

In  the  case  of  Ld.  Townsend  v.  Dr.  Hughes  (cZ),  the  words 
were,  "  He  is  an  unworthy  man,  and  acts  against  law  and  reason  ;" 
and  Scroggs  and  Atkins,  justices,  were  of  opinion  that  by  the  Com- 
mon Law  no  action  would  lie,  though  such  words  were  spoken  of  a 
peer  ;  but  North,  C.  J.  considered  the  words  to  have  been  action- 
able at  Common  Law  ;  and  held,  that  no  words  would  be  actionable 
under  the  statute  which  were  not  so  at  Common  Law. 

Whether  such  a  distinction  prevailed  or  not  at  Common  Law,  is 
at  present  a  matter  of  curiosity  rather  than  of  practical  importance, 
for  it  has  been  established  by  a  long  train  of  decisions,  that  the  dis- 
tinction, if  not  created,  has  at  all  events  been  considered  as  war- 
ranted, by  the  operation  of  the  statutes  alluded  to. 

Upon  these  it  has  been  held,  that  a  remedy  by  action  has  been 
given  to  the  great  men  of  the  realm,  entitling  them  to  a  compensa- 
tion in  damages  for  injurious  reflections  upon  their  char- 
acter, *though  the  statutes  themselves  no  not  in  express  [  *179  ] 
terms  profess  to  bestow  such  a  remedy.  And  this  doc- 
trine is  founded  upon  the  general  rule,  that  whenever  (e)  a  party  is 
prejudiced  by  the  doing  of  that  which  is  prohibited  by  statute,  he  is 
entitled  to  damages.  It  is  a  remarkable  circumstance,  that  from 
the  time  of  passing  the  st.  12  Rich.  2,  no  civil  action  appears  from 
the  reports  to  have  been  founded  upon  it  before  the  (/)  thirteenth 
year  of  Henry  the  Seventh,  comprising  an  interval  of  more  than  a 
century. 

2.  Next  as  to  the  parties  entitled  to  maintain  this  action. 

As  the  statute  2  R.  2.  st.  1.  c.  5,  commences  with  an  enumera- 
tion of  persons  inferior  in  rank  to  the  king,  it  has  been  held,  that 

(c)  See  Buller  L.  N.  P.  4.  and  12  Co.  133.  (J)  2  Mod.  150. 

(e)  KeU.  26.         (/)  Ld.  Townsend  v.  Dr.  Hughes,  2  Mod.  162.  10  Co.  75. 

Vol.  I.  37 


179  CIVIL  REMEDY ; 

the  latter  is  not  included  (g)  within  the  general  words,  "  and  great 
men  of  the  realm."  But  (A)  that  he  is  included  within  the  first  of 
Westminster. 

The  action  has  been  adjudged  to  extend  to  orders  of  nobiUty  cre- 
ated since  the  making  of  these  statutes  ;  so  that  although  the  stat, 
2  R.  2,  specifically  mentions    dukes,  earls,  and  barons 
[  •]  80  ]     only,  a  viscount  (z)  has  been  considered  to  be  *entitled 
to  the  action,  though  the  title  is  of  much  (k}  later  creation. 

It  has  been  said  (0,  that  a  female,  noble  by  birth,  is  not  within 
the  statute  ;  but  it  is  difficult  to  say  upon  what  principle  a  peeress 
is  excluded  from  the  benefit  of  this  statutable  protection. 

As  the  words  derive  their  actionable  essence  from  their  applica- 
tion to  the  dignitaries  specified  in  the  statute,  it  must  appear  that 
the  plaintiff  held  his  rank  at  the  time  when  the  words  were  pub- 
lished (on). 

By  the  act  of  union  (n)  with  Scotland,  it  is  enacted  that  all 
peers  of  Scotland  shall  also  be  peers  of  Great  Britain,  and  enjoy  all 
privileges  as  fully  as  peers  of  England,  except  of  sitting  in  the 
House  of  Lords  and  the  privileges  depending  thereon.  Under  this 
clause  it  has  been  determined,  that  a  peer  of  Scotland  is  one  of  the 
magnates  (o)  to  whom  this  statute  extends  ;  and  it  was  said,  that 
though  it  had  been  customary  in  such  action  to  aver  that  the  plain- 
tiff had  a  vote  and  seat  in  parliament^  such  an  averment  was  super* 

fluous. 
[  *181  ]         *It  seems  that  the  action  is  maintainable  by  a  Baron 
(p)  of  the  Exchequer,  though  the  statute  mentions  only 
Justices  of  the  one  bench  or  the  other. 

3.  "What  words  will  support  the  action. 

The  grounds  of  the  action  and  the  effect  of  these  statutes,  under- 
went much  learned  discussion  in  the  case  of  Lord  Townsend  v.  Dr. 

{g)  Crotnp.  Jur.  19.  35.  6  Bac.  Ab.  97.  12  Co.  133. 

(A)  12  Rep.  133.      .  (i)  Cro.  Car.  136.  Palm.  165. 

(k)  John  Beaumont,  the  first  Viscount,  was  created  such  18  H.  6. 

{I)  Crom.  Jur.  35.  6  Bac.  Ab.  97.  (m)  Vent.  60. 

(n)  5  Ann.  c.  8.  Art.  23. 

(0)  Lord  Falkland  v.  Phipps,  Comyn's  Rep.  439.    I  Vin.  Ab.  549.  pi.  22. 

(p)  Vid.  Pal.  565.  12  Co.  133. 


SCANDALUM  MAGNATUM.  181 

Hughes  Cq),  which  has  been  already  referred  to.     The  action  was 
there  brought  for  speaking  the  words,  "  He  is  an  unworthy  man, 
and  acts  against  law  and  reason."     Upon  not  guilty  pleaded,  the 
cause  was  tried,  and  the  jury  gave  4000L  damages.     Upon  motion 
in  arrest  of  judgment,  Serjeant  Maynard,  for  the  defendant,  allowed 
that  it  was  too  Tate  to  contend  that  an  action  to  recover  damages 
was  not  maintainable  under  the  statutes  of  Scandalum  Magnatum, 
upon  the  principle  before  mentioned,  that  where  a  statute  prohibits 
a  thing  prejudicial  to  another,  the  person  prejudiced  is  entitled  to 
recover  damages  ;  but  he  insisted  that  the  words  were  not  withm 
the  meaning  of  the  acts  ;  because,  the  term  unworthi/  imported  no 
particular  crime,— that  it  was  merely  a  term  of  comparison,  and 
that  instances  of  unworthiness  might  be   alleged  which 
would  *not  support  an  action  ;  but  that,  if  the  plaintiff     [  *182  ] 
had  been  compared  to  any  base  and  unworthy  thing,  the 
words  would  have  been  actionable  :  as  in  the  3Iarquis  (r)  of  Dor- 
chester's case,  of  whom  the  defendant  said,  "  There  is  no  more  value 
in  him  than  in   a  dog."     That  to  say  a  man  acts  against  law  and 
reason,  is  no  scandal ;  a  man  who  buries  one  of  his  family  m  linen 
acts  against  law,  but  that,  if  the  penalty  be  satisfied,  the  law  is  so 
too.     That  no  instance  was  given  in  which  the  plaintiff  had  acted 
against  law,  and  therefore  that  the  case  was  unlike  the  Duke  (s)  of 
Buckingham's,  who  brought  an  action  for  the  words,  "  You  are  used 
to  do  things  against  law,  and  put  cattle  into  a  castle  where  they  can- 
not be  replevied  ;"  for  in  that  case,  not  only  an  usage  was  charged 
upon  him,  but  a  particular  instance  of  oppression.     That  the  words 
in  question  were  uncivil,  but  not  actionable,— that  there  were  many 
authorities  which  shewed  a  peer  not  entitled  to  an  action  for  every 
trivial  and  slight  expression  spoken  of  him.     As  to  say  of  a  peer, 
"  He  keeps  none  but  rogues  and  rascals  about  (0  him,  like  himself," 
which  words,  in  the  opinion  of  Yelverton  and  Fleming, 
Justices,  were  not  actionable.     *That  the  statute    was     [  *183  ] 
made   to   punish   those   who  devised  "  false   hews,  and 
horrible  and  false  lies  of  any  peer,"  &c.  whereby  discords  might 

(q)  2  Mod.  150.  (r)  Crom.  Jur.  of  Courts.  ^ 

is)  Hil.  16  C.  2.  Roll.  1269.  (;!)  Earl  of  Lincoln's  case,  Cro.  J.  196. 


18B  CIVIL  REMEDY  : 

arise  between  the  lords  and  commons,  and  great  peril  and  mischief 
to  the  realm,  and  quick  subversion  thereof.  But  that  it  could  not 
be  contended,  under  the  fair  construction  and  intent  of  the  act,  that 
if  one  should  say,  "  Such  a  peer  is  an  unworthy  man,"  the  king- 
dom would  be  presently  in  a  flame,  and  turned  into  a  state  of  con- 
fusion and  civil  war ;  or,  that  the  state  would  be  endangered  by 
saying  of  a  peer,  "  he  acts  against  the  law."  That  the  plaintiff 
v?as  placed  in  no  hazard  by  the  words,  nor  in  any  wise  damnified  ; 
he  was  not  touched  in  his  loyalty  as  a  peer,  nor  in  danger  of  his 
life  as  a  subject ;  he  was  not  thereby  subjected  to  any  corporeal  or 
pecuniary  punishment,  nor  charged  with  any  breach  of  oath,  nor 
any  miscarriage  in  office. 

It  was  answered  by  Pemberton,  Serjt.  that  it  was  the  end  and 
object  of  these  sta  tutes  to  give  a  remedy  against  all  provoking  and 
vilifying  words  which  were  used  before  to  exasperate  the  peers,  and 
to  make  them  betake  themselves  to  arms,  and  to  carve  out  their  own 
remedy  by  the  sword.  That  since  the  design  of  the  statute  was  to 
prevent  such  practices,  not  only  those  words  were  to  be  considered 
as  falling  within  their  scope,  which  imported  great  scan- 
[  *184  ]  dal,  *and  for  which  an  action  lay  at  the  common  law,  but 
even  such  things  as  savored  of  any  contempt  of  their  per- 
sons, and  such  as  brought  them  into  disgrace  with  the  commons, 
whereby  they  took  occasion  of  prosecution  and  revenge.  And  he 
cited  Lord  CromweWs  case  (w),  where  the  words  were,  "  You  like 
those  who  maintain  sedition."  The  Earl  of  Lincoln^s  case,  "  My 
lord  is  a  base  earl,  and  a  paltry  earl,  and  keepeth  none  but  rogues 
and  rascals  like  himself." 

The  Duhe  of  Buchingharn' s  case  (.f),  "  He  has  no  more  con- 
science than  a  dog." 

The  Marquis  of  Dorchester^s  case,  "  He  is  no  more  to  be  valued 
than  the  black  dog  that  Ues  there." 

All  which  words  had  been  held  to  be  actionable,  though  not 
touching  the  persons  in  any  thing  concerning  the  government,  nor 
charging  them  with  any  crime,  but  in  point  of  dignity  and  honour. 

Scroggs,  J.  observed,  that  "  the  words  here  laid   are  not  so  bad 

(70  4  Co.  1.3.     Cro.  J.  196.  (x)  Hil,  16.  c.  2.     Roll.  1269. 


SOANDALUM  MAGNATUM.  184 

as  the  defendant  might  have  spoken,  but  they  are  so  bad  that  an 
action  will  lie  for  them  ;  and  though  they  are  general,  many  cases 
may  be  put  of  general  words  which  import  a  crime,  and  which  have 
been  adjudged  actionable." 

*  In  the  Earl  of  Leicester's  case,  "  He  is  an  oppres-  [  *185  ] 
sor,"  were  held  actionable. 

And  in  Lord  Winchester'' s  case,  "  He  kept  me  in  prison,  till  I 
gave  him  a  release,"  were  deemed  to  be  actionable,  because  the 
plain  inference  from  them  is,  that  he  was  an  oppressor. 

And  so,  in  Lord  Abergavenny's  case,  "  He  sent  for  me,  and  put 
me  in  Little  Ease."  It  appears  by  all  these  cases,  that  the  judges 
have  always  construed  in  favour  of  these  actions  ;  and  this  has  been 
done  in  all  probability  to  prevent  those  dangers  which  otherwise 
might  ensue  if  the  lords  should  take  revenge  themselves." 

Atkyns,  J.  held,  that  under  the   construction  of  the  statute,  the 
words  to  be  actionable  must  be  liorrihle  as  well  as  false,  and  such  as 
were  punishable  in  the  high  commission  court,  which  were  enormous 
crimes.     That  the  statute  did  not  extend  to  words  of  a  small  and 
trivial  nature,  nor  to  all  words  which  were  actionable,  but  only  to 
such  as  were  of  a  greater  magnitude,  such  by  which  discord  might 
arise  between  the  lords  and  commons,  to  the  great  peril  of  the  realm, 
and   such  which    are  great  slanders  and  horrible   lies,  which  are 
words  purposely  put  into  this  statute  for  the  aggravation  and  dis- 
tinction of  the  crime  ;  and,  therefore,  such  words  as  were  actionable 
at  the  common  law  might  not  be  so  within  this  statute, 
because  not  horrible  great  scandals.     The  learned  *judge     [  *186  } 
also   observed,  that  in  the  Buke  of  Buckingham's  case 
(2/),  (which  was  the  second  which  appears  to  have  been  determined 
in  an  action  on  the  statute,)  where  the  defendant  said,  "  You  have 
no  more  conscience  than  a  dog  ;"  and  in  the  case  of  Lord  Aberga- 
venny V.  Cartwright,  "  You  care  not  how  you  come  by  goods," 
the  words  charged  the  plaintiff  with  particular  matter,  and  did  not 
rest  barelyupon  opinion. 

That  in  the  case  of  the  Bishop  of  Norwich  (2),  the  words,  "  you 

(y)  4  Hen.  8.     Cromp.  Jur.  13.  {z)  Cro.  Eliz.  1. 


186  CIVIL  REMEDY  : 

have  writ  to  me  that  which  is  against  the  word  of  God,  and  to  the 
maintainance  of  superstitioi?,"  were  held  actionable,  because  they  re- 
fer to  his  function,  and  greatly  defame  him.  That  in  the  case  of 
Lord  3fordant  v.  Bridges  (a),  the  words  "  My  Lord  Mordant  did 
know  that  Prude  robbed  Shotbolt,  and  bade  me  compound  with 
Shotbolt  for  the  same  ;  and  said,  he  would  see  me  satisfied  for  the 
same,  though  it  cost  him  an  hundred  pounds,  which  I  did  for  him, 
being  my  master,  otherwise  the  evidence  I  could  have  given  would 
have  hanged  Prude,"  were  held  actionable ;  and  that  both  in  this, 
and  in  all  the  other  cases  which  had  been  mentioned  on  the  statute, 
and  where  judgment  had  been  given  for  the  plaintiff,  the  words  had 

always  charged  him  *with  some  particular  fact,  and  were 
[  *187  ]     positive  and  certain  ;  but  that  where  they  were  doubtful 

and  general,  and  signified  only  the  opinion  of  the  defend- 
ant, they  were  not  actionable.  That  the  words  in  the  case  at  bar 
neither  related  to  the  plaintiff  as  a  peer,  nor  as  a  lord  Heutenant, 
and  charged  him  with  no  particular  crime  ;  and  that  if  the  laws 
were  expounded  to  rack  people  for  words,  instead  of  remedying  one 
mischief,  many  would  be  introduced  ;  for  in  such  case  they  would  be 
made  snares  to  men.  He  farther  said,  that  it  was  fit  the  law  should 
be  settled  by  eome  rule,  because  it  is  a  wretched  condition  for  people 
to  live  under  such  circumstances  as  not  to  know  how  to  demean 
themselves  towards  a  peer ;  and  that  since  no  hmits  had  before  been 
prescribed,  it  was  fit  there  should  be  some  then,  and  that  the  court 
should  go  by  the  same  rules  in  the  case  of  a  peer  as  in  that  of  a 
common  person  ;  that  is,  not  to  construe  the  words  actionable,  with- 
out some  particular  crime  charged  upon  the  plaintiff,  or  an  allega- 
tion of  special  damage. 

North,  C.  J.  and  Wyndbam,  J.  agreed  with  Scroggs,  the  former 
being  of  opinion,  that  all  words  reflecting  upon  a  peer,  as  he  is  the 
king's  counsellor,  or  as  he  is  a  man,  of  honour  and  dignity,  are  ac- 
tionable at  the  common  law.      That  in  many  cases  where  a  man 

should  express  his  particular  disesteem,  an  action  would 
[  *188  ]     not  lie,  as  if  he  *had  said,  "  I  care  not  for  such  a  lord," 

but  that  words  of  general  opinion  and  disesteem  were  ac- 

(a)  Cro.  Eliz.  67. 


SCANDALUM  MAGNATUM.  188 

tionable,  as  was  held  in  the  Marquis  of  Dorchester^ sc^^q  (6)  ;  and, 
by  the  opinion  of  North,  C.  J.  and  Wyndham  and  Scroggs,  Justi- 
ces, judgment  was  given  for  the  plaintiflF. 

And  in  the  case  of  the  Earl  of  Pembroke  v.  Staniel  (^c') ,  the 
words  were,  "  The  Earl  of  Pembroke  is  of  so  little  esteem  in  the 
country,  that  no  man  of  reputation  hath  any  esteem  for  him  ;  he  is 
a  pitiful  fellow,  and  no  man  will  take  his  word  for  two-pence,  and  no 
man  of  reputation  values  him  more  than  I  do  the  dirt  under  my 
feet ;"  and  they  were  held  to  be  actionable  under  the  statute,  though 
they  would  not  have  been  so  in  the  case  of  a  private  person. 

And  in  the  case  of  Ld.  Falkland  v.  JPhipps  (^d),  the  terms 
villain,  villainous  rogue,  scrub,  and  scoundrel,  were  held  actionable. 

From  these  cases  it  appears,  that  general  expressions  of  contempt 
and  disesteem,  tending  to  degrade  and  vilify  the  characters  of  peers 
and  great  officers  of  the  realm,  are  actionable,  as  well  as  those 
which  impeach  their  loyalty,  or  impute  the  commission  of  any  crim- 
inal and  disgraceful  fact.  *Where  words  are  spoken  of 
a  peer,  which  would  be  actionable  as  spoken  of  a  pri-  [  *189  ] 
vate  person,  the  plaintiff  has  it  at  his  option  (e)  to  pro- 
ceed either  upon  the  statute,  or  in  the  usual  form  of  action. 

The  incidents  peculiar  to  Scandalum  Magnatum,  as  relating  to 
the  process,  pleading,  justification,  &c.  will  be  considered  in  common 
with^the  corresponding  ones  belonging  to  the  proceeding  at  common 
law. 

(b)  1  Sid.  293.  (c)  Freem.  Rep   49.     1  Vin.  Abr.  549. 

(d)  Comyn's  Rep.  449.  (e)  Per  Twisden,     Freem.     Rep.  49.  pi.  58. 


CHAPTER    VII. 


Special  Damage. 


*Thus  far  as  to  damage  in  law,  that  is,  as  to  those  com- 
[  *190  ]     munications  which  are  deemed  to  be  of  so  hurtful  a  na- 
ture, that  the  law^rcswrnes  a  consequent  damage  without 
actual  proof.      In  all  other  cases,  some  actual  specific  damage,  in 
fact,  is  essential  to  support  an  action. 
Here  two  questions  arise, 

1.  What,  in  legal  contemplation,  amounts  to  an  actual  damage  ? 

2.  How  must  such  damage  be  connected  with  the  slander,   to 
to  cousiitute  a  ground  of  action  ? 

1.    What,  in  legal  contemplation,  amounts  to  an  actionable  dam- 


age 


2 


The  defendant's  act  afiects  either  rights  already  acquired,  or  pre- 
vents the  acquisition  of  some  further  benefit  or  advantage. 

Where  the  plaintiff  has  been  wrongfully  charged  with  the  com- 
mission of  some  crime,  if  the  imputation  rest  as  a  bare  charge,  not 
officially  made  in  the  usual  course  of  a  criminal  pro- 
[  *191  ]  ceeding,  the  party,  it  seems,  has  a  right  to  consider  *the 
expense  and  labour  to  which  he  is  put  for  the  purpose  of 
manifesting  his  innocence  as  special  damage. 

As  where  the  plaintiff",  in  consequence  of  an  insinuation  that  he 
was  guilty  of  murder,  was  obliged  to  have  an  inquest  taken  on  the 
body  of  the  deceased  (/). 

(/)  Per  Lord  Mansfield.     Peake  v.  Oldham.    Cowp.  277. 


SPECIAL  DAMAGE.  192 

But  if  the  defendant  proceed  according  to  the  usual  forms  of 
criminal  prosecution,  though  the  plaintiff  is  entitled  to  recover  datn- 
ages  for  the  scandal,  vexation,  and  expense.,  brought  upon  him  by 
on  unfounded  and  malicious  accusation,  he  must  proceed  either  by 
an  action  of  conspiracy  or  by  a  special  action  on  the  case,  founded 
upon  the  criminal  proceeding  itself,  and  cannot  recover  (as  will 
afterwards  be  seen)  in  a  common  action  for  any  scandalous  matter 
published  in  the  course  of  such  a  prosecution  (r/). 

Where  a  party  is  prevented  from  selling,  exchanging,  or  makin* 
any  advantageous  disposition  of  lands,  or  other  property,  in  con- 
sequence of  the  impertinent  interference  of  the  defendant,  he  may 
maintain  an  action  for  the  inconvenience  which  he  has  sufifered,  but 
special  damage  must  be  shown  ;  and  the  mere  appre- 
hension (/i)  that  *in  consequence  of  the  slander,  the  [  *192  ] 
plaintiff's  title  may  be  drawn  in  question,  will  not  sup- 
port an  action. 

And  it  is  not  sufficient  to  show  generally  that  the  plaintiff  intend- 
ed to  sell  to  any  one  that  would  buy,  but  he  must  prove  that  he 
was  in  treaty  to  sell  them  to  some  specific  person  (i),  or  at  least 
that  some  one  was  deterred  by  the  slander  from  making  an  offer. 
Neither  will  it  suffice  to  show,  that  the  value  of  the  lands  was  les- 
sened in  people's  opinions,  but  proof  must  be  given  of  damage 
actually  sustained.  Where  the  alleged  loss  consists  in  the  pre- 
vention of  the  sale  of  lands,  it  must  appear  that  the  words  directly 
tended  to  defeat  the  plaintiff's  title  (/c). 

In  Sir  W.  G-errard  v.  i)/c^ersow  (Z),  it  was  said  by  Wray,  C. 
J.  that  in  all  cases  where  one  doth  entitle  a  stranger,  it  is  not  ac- 
tionable, except  it  be  shown  that  some  damage  comes  to  the  pro- 
prietor by  it,  viz.  that  he  cannot  let  it  or  sell  it,  &c. 

The  defendant  said(m),  "  M.  has  mortgaged  all  his  lands  for 

{g)  3  Bl.  Com.  126,     10  Mod.  210.  219,  220.     Str.  G91. 

(/t)  Cro.  Eliz.  197.  1  Vin.  Ab.  550.  pi.  6.  Yelv.  80.  Cro.  J.  642,  contra. 
Et  vide  Cro.  J.  397.     Sir  W.  .Tones,  196. 

(0  Manning  v.  Avery,  3  Keb.  153. 

(A)  Burr.  2622.  (/)  Cro.  Eliz.  196. 

(m)  Manning  v.  Avery,  3  Keb.  153.  1  Vin.  Ab.  553.  pi.  21.  Sty.  169. 
176.     Palm.  529. 

Vol.  I.  38 


If 2  CIVIL  REMEDY  : 

iClOO,  and  has  no  power  to  sell  or  let  the  same."     And, 

[  *193  ]     because  no  special  damage  nor  particular  'colloquium 

was  laid  of  a  treaty  to  sell  them  to  any  person  certain, 

but  only  in  general  that  he  intended  to  sell  it  to  any  one  that  would 

buy,  which  is  too  general,  judgment  was  stayed. 

In  Elbrow  v.  Allen  (w),  the  action  was  brought  for  the  words, 
"  He  is  but  a  bastard,"  spoken  of  the  plaintiff,  who  had  lands  by 
descent ;  by  means  of  which  he  was  put  to  great  expense  to  de- 
fend his  title.  And  two  of  the  justices,  against  the  opinion  of  Dod- 
eridge,  J.  decided,  that  the  words  were  actionable,  the  plaintiff 
having  averred  in  his  declaration  that  he  was  put  to  a  great  charge 

to  defend  his  inheritance  (o). 
[  *194  ]         'And  next,  where  the  plaintiff  is  prevented  from  ac- 
quiring some  benefit  or  advantage. 
In  general,  where  the  plaintiff  is  hindered^  by  the  mere  wrongful 

(n)  Cro,  J.  642. 

(o)  But  it  has  been  held,  that  to  institute  a  civil  suit,  though  there  be  no 
good  ground  for  it,  is  not  actionable,  because  it  is  a  claim  of  right  for  which 
the  plaintiff  has  found  pledges,  is  amerciable  pro  falso  cramore,  and  is  liable  to 
costs,  and  therefore  that  no  action  lies,  unless  the  defendant  be  roalicionsly 
sued*,  with  intent  to  imprison  him  for  want  of  bail. 

And  it  may  be  urged  that  the  plaintiff  is  precluded  from  recovering  from  the 
person  who  spoke  the  words  which  brought  his  title  into  litigation,  since,  in 
contemplation  of  law,  he  has  been  already  satisfied  for  the  false  claim. 

There  is,  however,  a  distinction  between  an  action  against  a  former  plaintiff, 
for  making  a  false  claim,  and  an  action  against  one  who,  by  a  false  and  mali- 
cious suggestion,  caused  him  to  assert  the  false  claim,  in  order  to  involve  the 
former  defendant  in  litigation  ;  for  such  a  party  has,  by  his  malicious  and  im- 
pertinent act,  subjected  another  to  the  trouble  and  anxiety  of  a  suit,  and  being 
a  wrong-doer,  who  has  no  colour  of  right,  he  stands  in  a  different  situation  from 
the  plaintiff  in  the  former  suit,  who  merely  sought  a  remedy  by  legal  means  ; 
and  to  constitute  special  damage,  it  is  by  no  means  essential  that  any  legal  right 
should  have  been  abridged.  One  who  does  no  more  than  the  law  permits  may 
not  be  liable,  and  yet  one  who,  by  undue  means,  caused  him  so  to  act,  may  be 
responsible.  Thus,  if  A.  slander  B.  in  a  discourse  with  C,  the  patron  of  a 
living,  and  C.  in  consequence  refuse  to  present  B.,  no  action  lies  against  C, 
but  an  action  lies  against  A.,  though  B.  never  had  any  legal  claim,  and  has  lost 
no  right  defined  by  the  law. 

*  See  Saville  v,  Roberts,   1  Salk.  13.  4  Co.  9  Co.  56.  b,  1  Roll.  Abr.  119. 


SPECIAL  DAMAGE.  194 

ac«  of  the  defendant,  from  succeeding  to  axiy  preferment,  benefit  ar 
advantage  -whatever,  he  may   maintain  an    action  for   the   special 

damage. 

As,  if  a  patron  (p)  intend  to  present  a  divine  to  a  benefice,  and 
the  defendant  say  of  him,  "  He  is  an  heretic,  or  a  bastard  ;"  for 
which  reason  the  patron  refuses  to  present  him,  and  he  loses  his 
preferment,  an  action  is  maintainable. 

So,  if  the  defendant  say  of  a  candidate  for  an  oflSce,  that  he  is  an 
ignorant  man  and  unfit  for  the  place,  by  means  of  which  he  loses  it, 
an  action  lies  (g).  [1] 

(p)  4  Co,  16.  (?)  March.  Rep.  pi.  217.     1  Buls.  138. 

[1]  Whether  at  this  day,  without  proof  of  express  malice,  it  would  be  held 
libellous  in  this  country,  or  in  England,  thus  to  speak  of  a  candidate  for  office, 
may  well  be  doubted.  The  law  recognizes  what  are  called  privileged  com- 
munications relating  to  matters  affecting  the  government,  its  laws,  policy,  and 
the  administration  of  public  affairs,  the  social  relations  of  life,  and  the  ordinary 
transaclions  of  business  ;  in  either  case  it  protects  from  liability  in  a  civil  action 
the  authors  of  such  communications,  although  erroneous  in  fact,  provided  they 
acted  upon  an  occasion  warranting  the  communications,  in  good  faith  and  with- 
out the  intent  of  effecting  mischief— the  law  presuming  the  innocence  of  the 
author,  until  the  contrary  be  shown  by  proof  of  express  malice.  Accordingly 
all  communications  made  in  the  discharge  of  duty,  public  or  private,  legal  or 
moral,  are  protected.  If  the  communicalion  of  an  individual,  in  a  matter  of 
privatL  business,  made  in  good  faith  and  without  malice,  to  another  having  a 
common  interest  in  the  subject  matter,  is  protected,  although  it  injuriously  and 
erroneously  assails  the  character  of  a  third  person,  assuredly,  a  communicalion 
whether  oral  or  written,  discussing  the  character,  talents  or  qualifications  of  a 
candidate  for  office,  addressed  to  the  constituency  whose  suffrages  are  solicited, 
by  individuals  having  a  common  interest  in  the  matter,  must  be  deemed  a  privi- 
leged communication. 

In  conformity  with  these  views  it  has  been  held  in  South  Carolina  in  the 
case  of  Mayrant  v.  Richardson,  1  Nott  and  McCord  327,  that  an  action  of  slan-  , 
der  would  not  lie  for  a  publication  in  reference  to  a  candidate  for  the  office  in 
which  it  was  alleged  that  the  mind  of  the  candidate  was  impaired.  Judge  Nott 
observed,  when  a  man  becomes  a  candidate  for  public  honors,  he  makes  profert 
of  himself  for  public  investigation.  No  one  has  the  right  to  impute  to  him  in- 
famous  crimes  or  misdemeanors ;  but  talents  and  qualifications  are  mere  matters 
of  opinion,  of  which  the  electors  are  the  only  judges.  So  in  the  case  of 
The  Commonwealth  v.  Clapp,  4  Mass.  R.  163,  Chief  Justice  Parsons  held 
substantially  the  same  doctrine.     "  When  any  man,"  he   says,  "  shall  consent 


194  CIVIL  REMEDY : 

[  *195  ]         *So,  where   a  servant    or   bailiff  is  prevented   from 
getting  a  place  (r). 
Loss  of  marriage  seems   to  have  been  always   considered  as  a 
temporal  damage  (s),  although  the  words  themselves  have  imputed 
matter  of  mere  spiritual  cognizance. 

to  be  a  candidate  for  public  office,  conferred  by  the  election  of  the  people,  he 
must  lie  considered  ''as  nutting  his  character  in  issue  so  far  as  may  respect  hi3 
fitness  and  qualifications  for  the  office."  Although  at  the  period  of  pronouncing 
judgment  in  this  case  iheiru'.h  could  not  be  given  in  evidence,  in  Massachusetts, 
in  justification  of  a  libel  criminally  prosecuted,  the  C.  J.  held  that  "  publica- 
tions of  the  irulh  on  this  subject,  with  the  honest  intention  of  informing  the 
people,  are  not  libellous,  for  it  would  be  unreasonable  to  conclude  that  the  pub- 
lication of  truth,  which  it  is  the  interest  of  the  people  to  know,  should  be  an  of- 
fence against  those  laws  "  In  Onslow  v.  Home,  2  Wm.  Black.  750,  which  was 
an  action  fin  words  spoken  of  a  m.ember  of  Parliament,  at  a  public  county 
meeting,  held  for  the  purpose  of  considering  of  measures  to  be  taken  in  support 
of  the  right  of  election,  it  was  moved,  in  arrest  of  judgment,  that  if  the  words 
were  actionable  in  themselves,  fhe  occasion  of  speaking  them  would  excuse  the 
defendant,  they  having  been  uttered  at  a  public  couniy  meeting  where  freedom 
of  debate  is  necessary.  The  Court  of  King's  Bench  acknowledged  the  im- 
portance of  the  question,  but  declined  expressing  an  opinion  upon  it.  Chief 
Justice  De  Grey  observed,  "  As  we  think  the  words  in  the  last  count  (the 
words  in  question)  are  not  actionuble,  either  in  themselves  or  as  applied  to  a 
member  of  Parliament,  we  shall  give  no  opinion  how  far  such  an  occasion  as  the 
meeting  stated  in  the  declaration  would  or  would  not  justify  speaking  such  words 
as  would  otherwise  be  clearly  actionalde.'" 

The  question  whether  a  communication  in  respect  to  a  candidate  for  office  is 
privileged,  was  expressly  raised  in  Duncombe  v.  Daniel,  8  Carr.  and  Payne, 
213,  decided  in  1837.  That  was  an  action  for  a  libel;  the  plaintiff  declared 
upon  two  letters  written  by  the  defendant  and  published  in  the  Morning  Post 
newspaper,  addressed  to  the  plaintiff,  who  was  a  candidate  for  the  represent- 
ation of  the  borough  of  Finsbunj,  in  the  British  Parliament.  The  defendant 
•was  an  elector  of  the  borough.  The  letters  contained  two  charges  :  1.  Impo- 
sition and  fraud  upon  the  Vice  Chancellor  in  obtaining  an  injunction  ;  and  0. 
dishonoiablu  and  dishonest  conduct  relative  to  a  money  transaction,  and  called 
upon  the  plaintiff  for  an  explanation  at  the  hustings.  Sir  W,  Follett,  fi)r  tlie 
defendant,  submitted  that,  as  the  plaintiff  was  a  candidate  for  the  representation 
of  the  borough,  and  the  defendant  an  elector,  the  latter  was  justified  in  stating 

(r)  Shepp.  Coll.  192. 

(5)  Davis  V.  Gardiner.  4  Co.  16.  Roph.  30.  1  Roll.  Rep.  34,  35,  109. 
Mo.  409.     Cro.  Car.  155.     Case  of  Sir  C.  Gerald's  bailiff.  Bull.  N.  P.  7. 


SPECIAL  DAMAGE.  195 

In  IdatJmvs  v.  Crass  (t^,  which  vras  an  action  for   words,  occa- 
sioning loss  of  marriage  ;  after  verdict  for  the  plaintiff,  it  was  urged, 

(0  Cro.  Jac.  323. 

to  the  other  electors  the  imputations  complained  of,  if  he  did  so  Jona^^/e  and 
without  malice,  heWeving  the  imputations  to   be  true.     Lord  Denman,  C.  J., 
charged  the  jury  that  it  appeared  to   him  that  the   occasion  did  not  justify  the 
publication,  and  the   plaintiff  had  a  veidict.     At  the  next  t'erm,  application  was 
made  for  a  new  trial  on    the   ground  {inter  alia,)  that  it  was  justifiable  for  an 
elector  ^^ona^^e  to  communicate  to  the  constituency   any  matter  respecting  a 
candidate  which  he  believed  to  be  true  and  material  to  the  election.     The  prin- 
ciple was  conceded  by  the  court  to  be  correct,  but  was  held  inapplicable  because 
the  communication  had  not  been  confined  to  the  constituency  of  the  plaintiff,  but 
had    been   published   in   the  Morning  Post.     When   Sir  W.  Follett  stated  as 
above,  the  ground  of  his  application  for  a  new  trial,  Coleridge,  J.  remarked, 
"  You  must  go  farther  than   that,  and  make  out  that  the   elector  is  entitled  to 
publish  it  to  all  the  world.     This  publication  was  in  a  newspaper."     Lord  Den- 
man, C.  J.,  also  after  hearing  counsel,  observed,  "  However  large  the  privilege 
ofelectorsmay  be,  itis  extravagant  to  suppose   that  it  can  justify  the  publica- 
tion to  all  the  world  of  facts  injurious  to  a  person  who  happens  to  stand  in  the 
situation  of  a  candidaie." 

On' the  other  hand,  when  at  a  very  early  day  it  was  said  of  a  candidate  for  a 
public  office,  "  he  is  an  ignorant  man  and   not  fit  for  the  place,"  the  judnes  m 
England,  after  the   case  had  been  twice  argued,  seemed  inclined  to  the  opinion 
that  ihe  words   were   actionable,  but   no   judgment   was   given,  Saunderson  v. 
Ruddes,  March's  R.  140,   pi.  217,  decided   in    17  Car.  I.  Anno   Domini   1642. 
The  other  case  cited  in  the  text,  viz.  1  Buls.  138,  is  that  of  Simpson  v.  Brooks, 
decided  in  1()12.     It  was  an  action  for  saying  of  the  plaintiff,  "  he  is  not  worthy 
to  bear  office  in  such  a  place,  for  he  keeps  a  bawdy  house  in  London."     The 
jury  found  for  the  plaintiff,  and  the  defendant  moved  in  arrest  of  judgment,  that 
the  words  were  not  per  se  actionable.     It  is  not  stated  in  Bulslrode  that  the 
plaintiff  was,  at  the  time  of  the  speaking  of  the  words,  a  candidate  for  office; 
but,  admitting  him  to  have  been  a  candidate,  the  question  whether  the  defendant 
washable  in  an  action  for  damages,  if  a  constituent  of  the  plaintiff,  and  the  words 
were  spoken  in  good  faith,  in  the  belief  of  their  truth,  and  loithout  malice,  could 
not  have  arisen  on  a  motion  in  arrest.     The  next  case  on  this  subject,  in  Eng- 
land, in  point  of  time,  is  Harwnod  v.  Astley,  4  Bos.  Pal.  47,  decided  in  1804, 
which  was  brought   into  the  Exchequer  Chamber  on  writ  of  error  from  the 
King's  Bench.     Astley  declared  that  he  was  a  candidate  for  election  as  one  of 
the  knights  of  the  shire,  to  represent  the  county  of  Norfolk  in  Parliament,  and 
that  wi'ih  the  intent  to  prejudice  him  in  the  esteem  of  the  freeholders  of  the 
county  having  aright  to   vote.  Harwood /a/se/y   and  maliciously  charged  him 


195  CIVIL  REMEDY  : 

on  motion  in  arrest  of  judgment,  that  this  was  the  first  case  where 
loss  of  marriage  was  ever  laid  for  words  spoken  of  a  man,  and  there- 
with being  a  murderer,  and  with  having  murdered  his  own  father.  The  defend- 
ant pleaded  not  guHty,  and  the  plaintiff  obtained  a  verdict  for  jC2000  damiges. 
Tiie  defendant  sued  out  a  writ  of  error,  and  the  judgment  was  affirmed.  Sir 
James  Mansfield,  C.  J.,  who  delivered  the  opinion  of  the  court,  held  that  the 
words  were  actionable  in  themselves,  and  being  so,  it  was  immaterial  whether 
ihey  were  spoken  of  a  candidate,  for  office  or  not ;  that  it  was  impossible  for  the 
jury  conscientiously  to  have  found  a  verdict  foi  the  plaintiff  unless  they  believed 
that  the  defendant  was  guilty  of  maUcioushj  speaking  the  words.  He  added, 
"  It  seems  to  be  supposed  that  the  situation  of  a  candidate  for  parliament,  is 
such  as  to  make  it  lawful  for  any  man  to  say  any  thing  of  him."  To  that  pro- 
position, he  said  "  I  cannot  assent;  nor  is  it  to  be  collected  from  any  of  the 
cases  which  have  been  cited.  It  would  be  a  strange  doctrine  indeed,  that  when 
a  man  stands  for  the  most  honorable  situation  in  the  country,  any  person  may 
accuse  him  with  any  imaginable  crime  with  impunity."  This  case  at  first  blush, 
would  seem  to  dispose  of  the  question,  but  on  looking  at  it  more  closely,  it  will 
be  found  not  to  do  so.  As  the  case  came  before  the  court  on  writ  of  error,  no 
other  judgment  than  that  of  affirmance  could  possibly  be  rendered.  The  charge 
against  the  plaintiff  was  truly  of  a  most  atrocious  nature  ;  yet  if  made  in  good 
faith,  believing  it  to  be  true,  the  defendant  had  a  right  to  make  it,  and  to  ap- 
prise his  fellow  electors  of  the  character  of  the  plaintiff  as  he  believed  it  to  be, 
and  the  law  would  presume  him  to  be  innocent  of  all  wrong,  until  such  pre- 
sumption was  rebutted  by  ^looi  o^  express  malice ;  and  we  are  bound  to  presume 
that  such  proof  was  given,  or  the  jury,  as  the  C.  J.  remarked,  would  not  have 
found  that  the  words  were  maliciously  spoken.  This  case  therefore,  as  before 
remarked,  settles  nothing. 

The  cases  upon  this  subject  which  have  arisen  in  the  Supreme  Court  of  the 
State  of  Nevif-York  and  Lewis  v.  Few,  5  Johns.  R.  1  ;  Root  v.  King,  7  Cowen 
617  ;  Powell  v.  Dubois,  17  Wendell  63  ;  Cramer  v.  Riggs,  17  Id.  209  ;  and 
Turrill  v.  Dolloway,  17  Id.  426,  and  26  Id.  383,  S.  C. 

Lewis  V.  Few  was  an  action  for  an  alleged  libel  contained  in  "  An  Address 
to  the  electors  of  ihe  State  of  New-Yoik,"  on  the  occasion  of  a  general  elec- 
tion when  the  plaintiff  was  a  candidate  for  re-election  to  the  office  of  Governor. 
It  was  insisted  by  the  counsel  for  the  defendant,  that  considering  the  nature  of 
the  publication,  and  ths  right  of  the  citizSn  freely  to  discuss  the  character, 
principles  and  conduct  of  a  candidate  for  office,  the  plaintiff  was  not  entitled  to 
sustain  the  action,  unless  he  proved  express  malice;  and  that  having  failed  to  do 
so,  he  was  not  entitled  to  recover.  The  court  denied  this  position,  and  held 
that  the  malice  implied  from  the  falsity  of  the  publication,  was  sufficient  to  sus- 
tain the  action  ;  thus  virtually  holding  that  a  publication  of  this  kind  was  not 
entitled  to  be  considered  as  a  privileged  communication.     The  same  doctrine 


SPECIAL  DAMAGE.  195 

fore  ^as  not  warranted  by  Ann  Davis's  case  (w).  But  the  court 
conceived  it  to  be  immaterial,  in  case  of  loss  of  marriage,  whether 
the  plaintiff  be  a  man  or  a  woman. 

In  order  to  support  an  action  grounded  upon  the  loss  of  marriage 
it  is  necessary  for  the  plaintiff  to  allege  and  prove  that  a  marriage 
with  some  specific  person  (x)  was  in  contemplation,  and 'was  hinder- 
ed  by  the  speaking  of  the  words. 

*The  necessity  of  proving  a  specific  loss,  falls  with  pe-  [  '196  ] 
culiar  hardship  upon  unmarried  females^  who  are  thereby 
frequently  debarred  from  maintaining  actions  for  imputations  most 
unfounded  and  injurious.  In  no  other  case  can  it  be  more  fairly  pre- 
sumed that  the  scandal,  if  believed,  will  produce  detriment,  than 
where  an  unmarried  female  is  charged  with  incontinence :  and  there- 
fore, in  no  other  case  is  the  plaintiff  better  entitled,  in  reason  and 
good  sense,  to  the  benefit  of  that  presumption,  in  order  to  obtain  a 
remedy  for  the  scandal,  and,  which  is  of  infinitely  more  importance, 
an  opportunity  of  fairly  meeting  and  rebutting  the  calumny. 

No  species  of  slander  can  be  more  cruel  and  malicious  in  its  origin, 
none  more  pernicious  in  its  consequences :  yet,  unless  some  specific 
damage  can  be  proved,  or  the  charge  be  committed  to  writing,  the 
suffering  party,  whose  peace  of  mind  is  destroyed,  and  prospects 
ruined,  has  no  appeal  but  to  courts,  whose  powers,  limited  as  they 
are,  to  the  infliction  of  penance  for  the  spiritual  benefit  of  the  wrong' 
doer,  can  administer  no  substantial  relief  or  protection  to  the  party 

wronged. 

Yet  it  is  this  very  jurisdiction  of  the  ecclesiastical  courts,  which 
has  frequently  been  assigned  as  a  reason  (though  surely  an  inade- 
quate one)  why  the  temporal  courts  should  not  interfere  to  give  a 
remedy  in  damages. 

•It  has  been  said  that  were  the  courts  of  law  in  such     [  *197  ] 
cases  to  entertain  an  action,  it  would  be  productive  of 
hardship  to  the  defendant,  who  would  be  twice  punished  for  the  same 

was  recognized  in  Root  v.  King,  7  Cowen  617.  In  the  three  other  cases  above 
mentioned,  there  is  no  allusion  in  the  opinions  pronounced,  to  the  doctrine  of 
privileged  communications.     Thus  stand  the  cases  upon  this  questioni. 

(u)  4  Co.  11.  vide  infra. 

(z)  1  Roll.  36.  1.  15.     1  Com.  Dig.  tit.  Defam.  D.  30. 


197  CIVIL  REMEDY : 

offence,  by  an  award  of  damages  in  the  temporal,  and  by  the  inflic- 
tion of  penance  in  the  spiritual  court. 

This  mode  of  reasoning  is  evidently  fallacious  :  if  a  man  contrive 
by  one  and  the  same  act,  to  offend  against  religion,  and  to  do  a  se- 
rious temporal  injury  to  his  neighbour,  though  the  act  be  one  and 
the  same,  it  unites  and  comprehends  oftences  wholly  disiinct,  and  it 
is  absurd  to  say  that  the  spiritual  offence  shall  protect  the  offender 
from  consequences  merely  temporal,  and  that,  by  rendering  himself 
liable  to  a  trifling  penance,  he  shall  rid  himself  of  a  load  of  tempo- 
ral responsibility. 

The  objection,  too,  falsely  assumes,  that  the  payment  of  damages 
is  in  the  nature  of  punishment ;  by  the  law  of  England,  the  amount 
of  damages  is  in  all  cases  to  be  measured  by  the  temporal  prejudice 
sustained  by  the  plaintiff,  and  they  are  awarded  without  any  regard 
to  the  penal  correction  of  the  defendant,  or  the  reformation  of  his 
manners  ;  the  reason,  at  all  events,  is  a  strange  one  to  have  weighed 
in  a  court  of  law,  whose  records  abound  with  cases,  which  prove 
that  for  the  same  act  a  person  may  be  both  civilly  and  criminally  re- 
sponsible. 
[  "lOS  ]  *Such,  however,  is  the  law  upon  this  point  though 
formerly  much  doubt  was  entertained  upon  it. 
In  Ann  BavWs  case,  (2/),  the  plaintiff  declared  that  she  was  a 
vlrf^in  of  good  fame,  &c.  and  that  one  Anthony  Elcock,  citizen  of 
London,  of  the  substance  of  £3000,  desired  her  for  his  wife,  and 
had  thereon  conferred  with  John  Davis  her  father,  and  was  ready  to 
conclude  it,  when  the  defendant,  knowing  the  premises,  but  intend- 
ing to  injure  the  said  Ann,  and  to  obstruct  the  said  Anthony's  pro- 
ceedings, published  of  the  said  Ann  these  words,  "  I  know  Davis's 
daughter  well,  she  dwelt  in  Cheapside,  and  there  was  a  grocer  there 
that  did  get  her  with  child  ;"  by  which  the  said  Anthony  refused  to 
take  her  to  Avife. 

After  verdict  for  the  plaintiff,  it  was  moved  in  arrest  of  judg- 
ment, that  the  words  were  not  actionable,  because  the  defamation 
was  spiritual.  But  it  was  resolved  by  the  whole  court,  that  the  ac- 
tion was  maintainable  : 

(y)  4  Co.  16. 


SPECIAL  DAMAGE.  198 

1.  Because,  if  a  woman  had  a  bastard,  she  was  punishable  by 
the  statute  of  18  Eliz.  c.  3. 

2.  That  if  the  defendant  had  charged  barely  with  incontinence, 
the  action  would  have  been  maintainable,  since  the  ground 

of  action  *was  temporal,  namely,  that  she  was  defeated     [  *199  ] 
of  her  marriage. 

But  in  subsequent  cases,  (s)  the  first  of  the  reasons  given  in 
Ann  Davis's  case  was  denied  to  be  law ;  and  it  was  said,  that  the 
sole  reason  on  which  the  judgment  rested  was  the  loss  of  marriage. 

In  Baldwin  and  his  wife  v.  Flower  (a),  it  was  held  that  an  ac- 
tion lay  for  calling  the  wife  "  vfhore,"  because,  by  such  means,  she 
might  lose  the  communication  and  society  of  her  neighbors. 

In  Medhurst  v.  Balsam  (6),  the  plaintiff  declared  she  had  sev- 
eral suitors  to  marry  her ;  and  that  the  defendant  said  of  her, 
"  She  is  with  child,  and  hath  taken  physic  for  it ;"  by  which  she 
became  in  disgrace,  and  lost  the  society  of  her  neighbors.  And  it 
was  adjudged  that  the  action  lay,  though  no  loss  of  marriage  was 
alleged. 

This  doctrine  has,  however,  been  overruled  in  a  variety  of  ca- 
ses (c). 

In   Ogden  v.  Turner  (cZ),  Holt,  C.  J.  observed,  "  To 
say  of  a  young  woman  that  she  *had  a  bastard,  is  a     [  *200  ] 
very  great  scandal,  and  for  which,  if  I  could,  I  would 
encourage  an  action  ;  but  it  is  not  actionable,  because  it  is  a  spirit- 
ual defamation,  punishable  in  the  spiritual  court." 

In  Bi/ron  v.  Bmes  (e),  a  young  unmarried  woman  had  been 
charged  with  gross  incontinency.  After  a  verdict  for  the  plaintiff, 
it  w'as  moved,  in  arrest  of  judgment,  that  the  words  were  not  ac- 
tionable, because  they  were  of  spiritual  cognizance,  and  that  no 
temporal  loss  had  accrued  :  that  to  say,  "  a  woman  has  a  bastard," 
was  never  actionable  before  the  statute  for  the  provision  of  bastard 
children  ;  and  that,  since  the  statute,  it  had  never  been  held  action- 

(z)  1  Lev.  261.     Sid.  397.     Vent.  4.  (a)  3  Mod.  120. 

(&)  1  Vin.  Ab.  393.  pi.  7.     Sid.  397. 

(c)lLev.  261.    2Keb.  451.     I  Sid.  396.  Ld.  Ray  1004. 

(d)  Holt.  R,  40.  (e)  12  Mod.  106.     3  WUl.  3. 

Vol.  1.  39 


200  CIVIL  REMEDY  : 

able  but  where  the  party  had  been  brought  within  the  penalty  of 
the  statute,  which  is  only  where  the  bastard  becomes  chargeable  to 
the  parish  ;  that  these  words  were  most  scandalous  of  a  young  wo. 
man  ;  and  that,  had  it  been  res  nova,  perhaps  an  action  would  have 
lain,  but  that  there  were  many  authorities  to  the  contrary.  That 
it  was  a  crime  of  which  the  spiritual  court  had  conusance,  and 
could  censure  ;  and  that  it  was  not  reasonable  that  the  party  should 
be  liable  to  ecclesiastical  censure  and  an  action  too,  on  which  ac- 
count Ann  Davis's  case  had  been  often  shaken,  and  judgment  was 
given  for  the  defendant. 

*For  simi^r  words  in  Cr eaves  v.  Blanchet  (f),  judg- 
[  •201  ]  ment,  after  verdict  for  the  plaintiff,  was  arrested ;  the 
court  observing,  that  they  could  not  overthrow  so  many 
authorities,  and  that  the  reason  was,  that  fornication  was  a  spiritual 
offence,  and  that  no  action  lay  at  Common  Law  for  what  the  Com- 
mon Law  took  no  notice  of. 

In  the  above  case  ((/)  also,  the  court  said,  that  if  it  were  res 
nova,  it  were  reasonable  to  make  the  words  actionable,  for  no  great- 
er misfortune  can  befal  a  young  woman,  whose  well  doing  depends 
upon  her  having  a  good  husband,  than  to  be  reputed  a  whore ;  but 
the  authorities  are  too  many  and  great  to  run  counter  to  them  ;  the 
reason  of  them  is,  that  fornication  is  a  spiritual  offence,  not  punish, 
able  at  Common  Law,  and  an  action  shall  not  lie  for  charging  one 
with  an  offence  of  which  the  law  takes  no  notice,  without  special 
damages ;  and  if  Ann  Davis's  case  had  been  pursued,  as  it  had  been 
contradicted,  it  would  do. 

From  these  and  many  similar  authorities,  it  appears,  that  the 
judges  have  long  ago  felt  themselves  overpowered  with  the  number 
of  the  decisions  upon  this  point,  constantly  regretting  that  they  were 
no  longer  at  liberty  to  determine  differently. 

*Before  this  subject  is  dismissed,  it  may  be  proper  to 
[  *202  ]     remark,  that  in  the  old  decisions  upon  this  point,  the  on- 
ly question  contemplated  seems  to  have  been,  whether 

(/)  Salk.  695.    6  Mod.  148. 
(g)  6  Mod.  148. 


SPECIAL  DAMAGE.  202 

the  words  of  incontinency  (Ji)  were  actionable,  as  imputing  a  crime; 
and  it  does  not  appear  to  have  been  much  considered,  whether  they 
were  not  actionable  on  the  broad  plain  ground  that  they  immediate- 
ly tend  to  hinder  the  plaintiff's  advancement  in  Ufe  by  an  advanta- 
geous marriage. 

It  may,  perhaps,  be  too  late  to  contend,  that  the  plaintiff  is  en- 
titled, to  recover  upon  this  general  principle;  the  courts,  however, 
have  manifested  a  desire  to  administer  every  relief  in  their  power  to 
plaintiffs  of  this  description,  so  that  the  most  trifling  loss  sustained 
in  consequence  of  such  slander,  as  of  a  dinner,  or  other  hospitable 
but  gratuitous  entertainment  (0,  will  entitle  the  party  to  her  ac- 
tion [1]. 

And,  in  general,  wherever  a  person  is  prevented  by  the  slander 
from  receiving  that  which  would  otherwise  have  been  conferred  upon 
him,  though  gratuitously,  the  special  damage  will  support  an  action. 
As  where,  in  consequence  of  a  charge  of  incontinence, 
a  dissenting  preacher  *was  prevented  from  preaching  (Jc)  [  *203  ] 
and  receiving  voluntary  donations. 

So,  the  loss  of  particular   customers  by  a  tradesman  is  an  action- 
able special  damage  (I) . 

{h)  See  the  first  resolution  in  Ann  Davis's  case,  4  Coke,  16. 

(i)  Moore  v.  Meagher  in  Error,  1  Taun.  39. 

(k)  Hartley  v.  Herring,  8  T.  R.  130. 

{I)  Barron  v.  Gibson,  Ld.  Ray.  831.  Sir.  5B6.     Bull.  N.  P.  7.   1.  Lev.  140. 

[1]  The  refusal  of  civil  treatment  at  a  public  inn  has  been  held  sufficient 
proof  of  special  damage,  Olmsted  v.  Miller,  1  Wendell  50G  :  Loss  of  health 
and  consequent  incapacity  to  attend  to  business,  was  held  on  demurrer  a  suffi- 
cient averment  of  special  damage,  Bradt  v.  Tovvsly,  13  Wendell  253  :  Proof 
that  the  plaintiff  was  turned  away  from  the  house  of  her  uncle,  and  charged  not 
to  return  there  until  she  had  cleared  up  her  character,  was  held  sufficient  to 
sustain  an  action,  Williams  v.  Hill,  19  Wendell  305.  So  an  allegation  that  in- 
dividuals who  had  been  in  the  habit  of  providing  fuel,  clothing,  and  provisions 
for  the  plaintiff,  refused  to  do  so  any  longer  in  consequence  of  the  speaking  of 
the  slanderous  words  complained  of,  was  held  sufficient  evidence  of  special 
damage,  Beach  v.  Ranney  2  Hill,  309.  In  the  last  case,  the  three  former  cases 
are  reviewed  ;  and  it  is  said  they  all  proceed  upon  the  assumption  that  the  plain- 
tiff had  sustained  pecuniary  loss  in  consequence  of  the  slanderous  words,  and 
that  without  such  assumption  the  decisions  could  not  be  sustained- 


203  CIVIL  REMEDY : 

And  it  is  immaterial  in  such  case,  whether  the  words  relate  to  his 
business  or  otherwise  (w). 

A  mere  apprehension  of  ill  consequences  cannot  constitute  a  spe- 
cial damage  ;  so  that  it  has  been  held  to  be  insufficient  for  the 
plaintiff  to  allege,  that  in  consequence  of  the  words,  discord  hap- 
pened between  him  and  his  wife  (n),  and  he  was  in  danger  of  a 
divorce. 

Or,  to  allege  that  the  plaintiff  (o)  was  exposed  to  her  parents' 
displeasure,  and  in  danger  of  being  put  out  of  their  house. 

Or,  to  say  he  lost  the  affection  of  his  mother  (p),  who  intended 
him  £100. 

2.  Sow  must  the  special  damage  he  connected  with  the  slander, 

to  constitute  a  ground  of  action  ? 

[  *204  ]         It  was  said  by  Holt,  C.  J.  that  "  At  Common  *Law, 

if  a  man  do  an  unlawful  act,  he  shall  be  answerable  for 

the  consequences,  especially  where  the  act  is  done  with  the  intent 

that  consequential  damage  shall  follow  (j)." 

But  it  is  not  essential  that  the  damage  should  be  the  necessary 
and  inevitable  consequence  of  the  slanderous  words  ;  it  is  sufficient, 
for  instance,  if  they  impose  upon  the  plaintiff  a  violent  and  urgent 
motive  for  incurring  expense. 

In  the  case  of  Peake  v.  Oldham  (r).  Lord  Mansfield  expressed 
an  opinion,  that  the  expenses  of  an  inquest  incurred  by  a  plaintiff, 
who  had  been  wrongfully  accused  of  murder,  might  be  considered 
as  special  damage. 

The  rule  appears  to  be,  that  the  damage  must  be  the  mere,  nat- 
ural, and  immediate  consequence  of  the  wrongful  act. 

The  defendant  asserted,  that  the  plaintiff  had  cut  his  master's 
cordage  (s)  upon  which  the  master  discharged  him,  though  he  was 
under  an  engagement  to  employ  him  for  a  term.  It  was  held  by 
the  court,  that  the  discharge  was  not  a  ground  of  action  ;  that  the 

(m)  1  Lev.  140.  (n)  1  Roll.  34. 

(0)  Barnes  v.  Bruddell,  1  Lev.  261. 

(p)  Car.  1.    1  Com.  Dig.  tit.  Defam.  D.  30. 

(?)  Ld.  Ray.  480.  (r)  Cowp.  277. 

(a)  Vicars  v.  Wilcocks,  8  East.  1  = 


SPECIAL  DAMAGE.  204 

special  damage  must  be  the  natural  and  legal  consequence  of  the 
words  spoken  ;  and  that  the  defendant  was  no  more  an- 
swerable for  the  discharge,  than  if,  in  consequence  *of     [  *205  ] 
the  words,  other  persons  had  assaulted  and  thrown  the 
plaintiff  into  an  horse-pond. 

The  damage  must  be  attributable  ivlwlly  to  the  words  ;  so  that, 
where  the  reason  of  a  person's  refusing  to  employ  the  plaintiff  was 
founded,  partly  on  the  defendant's  words,  and  'partly  on  the  circum- 
stance of  his  having  been  previously  .discharged  by  another  master, 
it  was  held  that  no  action  was  maintainable  (0 . 

And  it  has  been  said  that  (m),  where,  in  consequence  of  the 
words,  a  third  person  has  refused  to  perform  a  contract  previously 
made  with  the  plaintiff,  and  which  he  was  in  law  bound  to  perform, 
no  action  is  maintainable  ;  for  the  plaintiff,  in  such  case,  is  entitled 
to  a  compensation  for  the  non-performance  of  the  contract ;  and, 
were  he  allowed  to  maintain  his  action  for  the  slander,  he  would  re- 
ceive a  double  compensation  for  the  same  injury  :  first,  against  the 
author  of  the  slander  ;  and  secondly,  against  the  person  who  had 
refused  to  perform  his  agreement. 

This  doctrine  would,  in  many  instances,  be  productive  of  hard- 
ship to  the  plaintiff:  he  may  resort,  it  is  true,  to  his  legal  remedy 
against  the  person  refusing  to  perform  his  contract ; 
but  this  can  scarcely  be  considered  as  a  full  and  *real  [  *205  ] 
compensation  to  the  party,  who,  by  the  defendant's  wrong- 
ful act,  has  had  a  benefit  in  possession  wrested  from  him,  and  con- 
verted into  a  bare  legal  right  (x). 

{t)  8  East.  1.  (u)  2  Bos.  &  Pull.  284.  8  East.  1. 

{x)  Besides  this,  he  may  have  heen  put  to  great  trouble,  and  to  some  ex- 
pense, in  respect  of  which  he  could  not  obtain  any  compensation,  in  an  action 
for  the  breach  of  contract.  It  is  notorious,  that  no  plaintiff,  in  such  an  action, 
recovers  the  whole  of  his  costs.  If  it  be  said,  that  he  does,  in  legal  consider- 
ation, recover  his  full  costs,  it  may  be  replied,  that  in  such  actions  it  is  by  no 
means  essential  that  the  special  damage,  which  is  necessary  to  support  the  ac- 
tion, should  amount  to  strict  legal  damage.  The  loss  even  of  a  gratuitous  do- 
nation, if  it  has  been  intercepted  by  means  of  the  defendant's  slander,  is  sufficient 
to  support  the  action  ;  and  in  Peake  v.  Oldham,  Cowp.  277,  Lord  Mansfield 
held,  that  the  expenses  of  an  inquest,  which  had  been  incurred  by  the  plaintiff 


207  CIVIL  REMEDY : 

[  *207  ]  *The  defendant  (?/)  having  libelled  a  performer  at  a 
place  of  public  entertainment,  she  refused  to  sing,  and 
the  proprietor  brought  his  action  on  the  ground  of  special  damage, 
alleging  that  his  oratorios  had,  in  consequence  of  her  absence,  been 
more  thinly  attended.  But  it  was  held,  by  the  learned  judge  who 
presided  at  the  trial,  that  the  injury  was  too  remote  ;  that  if  the 
performer  was  really  injured,  an  action  lay  at  her  suit ;  and  that  it 
did  not  appear  but  that  her  refusal  to  perform  arose  from  caprice  or 

indolence. 
[  •208  ]         *The  plaintiff  having  once  recovered  damages  in  an 
action  for  words,  cannot  afterwards  recover  an  ulterior 
compensation  for  any  loss  subsequently  resulting  from  the  samo 

in  consequence  of  a  slanderous  imputation  of  murder,  was  special  damage  ; 
yet  there  the  plaintiff  was  under  no  legal  obligation  whatsoever  to  incur  such 
expenses.  If  one  man,  by  a  wrongful  and  malicious  act,  is  the  immediate 
cause  of  another  man's  committing  another  wrongful  act,  to  the  injury  of  the 
same  party,  there  seems  to  be  no  objection,  on  the  score  of  legal  policy  or 
morality,  to  his  recovering  a  satisfaction  from  each,  proportioned  to  the  extent  of 
the  damage  occasioned  by  each  :  he  Joes  not,  either  in  point  of  law  or  fact,  re- 
cover a  double  remedy  for  the  same  injury.  The  damage  immediately  occa- 
sioned by  the  slander,  that  is,  the  loss  of  character  and  the  loss  of  the  immedi- 
ate benefit  of  his  contract,  and  the  trouble  and  extra  expense  to  which  he  must 
be  put  to  obtain  compensation  for  the  breach  of  contract,  is  distinguishable  from 
the  damage  arising  from  the  breach  of  contract. 

If  the  objection  were  well  founded,  it  would  extend  to  the  exclusion  of  an 
action  to  be  brought  by  any  servant  who  was  under  contract  to  serve,  though  the 
words  were  in  themselves  actionable  ;  for  if  an  actual  dismissal  from  service 
would  not  be  an  actionable  damage  by  reason  of  the  contract,  there  could  be  no 
sufficient  presumption  of  damage  to  support  the  action.  It  would  be  absurd  to 
sustain  an  action  upon  a  mere  presumption  of  evil  consequences,  and  to  deny  it 
where  the  very  consequences  had  resulted.  It  is  also  observable,  that  the  ob- 
jection is  consistent  with  all  the  cases,  many  of  which  have  occurred  where  the 
special  damage  has  consisted  of  loss  of  marriage,  where  the  party  who,  by  rea- 
son of  the  slander,  broke  off  the  marriage,  was  under  a  promise  to  marry.  Qu. ; 
therefore  vide  Morris  v.  Langdale,  2  B.  &  P.  284.  See  also  the  case  of  New- 
man V.  Zachary,  Aleyn,  3,  it  was  held,  that  case  would  lie  for  falsely  represent- 
ing to  the  bailiff  of  a  manor,  that  a  sheep  of  the  plaintiff's  was  an  eslray,  in 
consequence  of  which  it  was  wrongfully  seized.  And  see  Ld.  Holt's  obser- 
vations, ib. 

iy)  1  Esp.  R.  48. 


SPECIAL  DAMAGE.  208 

words  (3).  Where  the  plaintiff  (a),  knowing  the  defendant's  sen- 
timents, procures  the  publication  of  that  from  which  damage  re- 
sults, he  will  not  afterwards  be  at  liberty  to  ascribe  his  loss  to  the 
defendant's  act,  but  be  considered  as  the  voluntary  author  of  the 
mischief  which  follows  [1] . 

(z)  Bull.  N.  P.  7.  (a)  3  B.  &  P.  592.  5  Esp.  R.  15. 

[1]  In  addition  to  the  cases  cited  under  note  (a)  see  Weatherslon  v.  Hawk- 
ins, 1  T.  R.  110,  per  Buller  J.  Howard  u.  Thompson,  21  Wendell  319; 
Bradley  v.  Heath,  12  Pickering  163  ;  Wilmarth  v.  Mountford,  4  Wash.  C.  C. 
R.  79  ;  Lamed  v.  Buffinton,  3  Mass.  R.  553.  In  Warr  v.  Jolly,  6  Carr.  & 
Payne  497,  the  defendant  in  answer  to  the  questions  put  by  the  plaintiff,  (a  cler- 
gyman,) told  him  that  he  had  been  cautioned  against  him  as  a  man  of  intem- 
perate habits,  it  was  held  that  for  words  thus  spoken  by  the  defendant,  an  ac- 
tion would  not  lie.  Alderson,  B.  in  summing  up  told  the  jury,  "  the  words  are 
privileged  by  the  occasion,  unless  you  are  satisfied  that  they  were  not  spoken 
lond  fide,  and  that  the  defendant  was  actuated  by  malice  ;  and  it  lies  on  the 
plaintiff  to  show  that  the  defendant  was  actuated  by  malicious  motives." 


CHAPTER    VIII. 


Publication  and  Intention. 

[  *209  ]  *Having  thus  considered  the  nature,  quality,   and 

consequences  of  the  matter  communicated,  the  next 
question,  according  to  the  elementary  division  already  announced, 
is  as  to  the  act  of  communication  by  the  defendant,  and  the  in- 
tention  -with  ^vhich  he  (a)  made  it. 

It  is  of  course,  essential  to  the  production  of  any  loss  or  damage 
to  the  plaintiff,  that  the  slanderous  matter  should  have  been  com- 
municated or  published  to  some  third  person  ;  in  this  respect,  civil 
differs  from  criminal  liability,  which  as  will  be  seen,  may  be  con- 
summated by  a  publication  to  the  party  defamed  without  more  ; 
but,  with  the  exception  of  the  case  of  libel,  the  means  of  publica- 
tion are  indifferent,  and  do  not  affect  the  right  of  action. 
[  *210  ]  *In  the  case  of  libel,  it  is  sufficient  if  the  defendant 
be  the  partial  instrument  of  communication,  either  by 
assisting  in  its  original  construction  or  subsequent  promulgation  ; 
if  one  party  were  to  dictate,  a  second  to  write,  and  a  third  to  dis- 
tribute written  or  printed  slander,  the  plaintiff  would  be  left  with- 
out remedy,  unless  each  of  these  parties  were  to  be  considered  as 
responsible  for  the  whole  effect  produced. 

The  subject  of  publication  will  hereafter  be  discussed  as  a  matter 
of  evidence ;  assuming  therefore,  for  the  present,  that  some  publica- 

(a)  Supra,  p.  5. 


MALICE  m  LAW.  210 

tion  (6)  has  been  made  to  a  third  person,  with  the  defendant's 
knowledge,  and  through  his  procurement ;  the  next  point  for  con- 
sideration is — 

The  intention  with  which  he  published. 

The  intention  of  the  publisher  may  be  regarded  either  independ- 
ently of  the  occasion  of  publishing  and  the  collateral  circumstances, 
or  in  connection  with  them. 

First,  independently  of  the  occasion  and  circumstances. 

It  seems  to  be  clear,  as  well  upon  legal  principles  as  on  those  of 
morality  and  poHcy,  that  where  the  wilful  act  of  publishing  defama- 
tory matter  derives  *no  excuse  or  qualification  from  col- 
lateral circumstances,  none  can  arise  from  a  considera-  [  *211  ] 
tion  that  the  author  of  the  mischief  was  not  actuated  by 
any  deliberate  and  malicious  intention  to  injure,  beyond  that  which 
is  necessarily  to  be  inferred  from  the  very  act  itself.  For  if  a  man 
wilfully  does  an  act  likely  to  occasion  mischief  to  another,  and  to 
subject  him  to  disgrace,  obloquy,  and  temporal  damage,  he  must,  in 
point  of  law  as  well  as  morals,  be  presumed  to  have  contemplated 
and  intended  the  evil  consequences  which  were  likely  to  ensue. 

To  run  the  risk  of  effecting  a  serious  injury  to  another,  even  from 
want  of  due  care  and  attention,  is  necessarily  an  offence  against  the 
first  principles  of  morality ;  and  even  were  it  otherwise,  it  would  be 
highly  impoUtic  and  inconvenient,  as  a  rule  of  law,  to  permit  every 
man  to  destroy  the  characters  of  others,  provided  he  was  not  actuat- 
ed by  motives  of  express  malice,  but  acted  without  consideration, 
heedless  of  consequences. 

Every  legal  analogy  which  can  be  called  in  aid  suggests  the  same 
conclusion.     According  to  the  general  and  ordinary  rules  of  Law,  a 
remedy  is  given  for  every  injury,  that  is,  in  respect  of  every  wilful 
privation  of  right,  and  throughout  the  whole  of  the  wide  range  of 
decisions  on  the  subject  of  injury  to  a  man's  person   or 
property,  there  is,  perhaps,  not  *oae  to  be  found  where     [  *212  ] 
the  liability  to  make  compensation  is  not  necessarily  and 
immediately  consequent  upon  a  wilful  privation  of  a  recognized  legal 

(b)  See  Baldwin  v.  Elphinstone,  Bl.  Rep.  1037.  Phillips  v.  Jarwen,  2  Esp. 
624.     Edward's  and  Walton's  case,  4  Lev.  240.  Hob.  62. 

Vol.  I.  40 


212  CIVIL  REMEDY— INTENTION. 

ri^ht,  in  the  absence  of  a  legal  justification  or  excuse,  arising  from 
collateral  circumstances.  Thus,  in  every  instance  where  a  forcible 
injury  is  committed  against  the  person  or  property  of  another,  the 
actual  intention  of  the  author  of  the  mischief  is  immaterial ;  it  is 
sufficient  that  he  did  the  act  either  wilfully,  or  even  negligently  and 
carelessly :  no  defence,  in  such  cases,  can  be  founded  on  the  absence 
of  an  actual  intention  to  effect  the  particular  mischief,  and  none  can 
be  made  in  the  absence  of  collateral  circumstances,  which  furnish 
some  legal  justification  or  excuse.  In  all  such  cases,  ii  is  the  policy 
of  the  law,  to  make  the  party  who  is  in  fault  make  compensation  to  the 
extent  of  the  injury,  which  he  has  occasioned  to  one  who  was  blame- 
less ;  and  the  law  not  only  considers  him  to  be  in  fault,  who  wilfully 
does  an  act  likely  to  occasion  mischief,  but  also  every  one  who  pro- 
duces such  consequences  by  culpable  carelessness  and  inattention, 
and  want  of  due  regard  to  the  interests  of  others.  Such  principles 
apply  themselves  to  the  particular  case  of  slander  too  forcibly  to 
require  any  laboured  application.  When  the  law  has  once  defined 
the  right  to  character  and  reputation,  it  follows,  as  a 
[  *213  ]  legal  conseqdence,  *that  any  one  who  wilfully  deprives 
another  of  the  enjoyment  of  that  right,  ofi'ends  against 
the  law,  and  is  bound  to  make  reparation  in  damages  coextensive 
with  the  injury. 

If  such  observations  be  well  founded,  it  is  clear  that,  if  malice  be 
used  as  descriptive  of  this  species  of  injury,  it  must  be  understood 
not  generally  of  actual  malice,  in  the  ordinary  and  popular  sense  of 
the  term,  or,  as  it  has  sometimes  been  called,  malice  in  fact,  but  of 
malice  in  its  legal  and  technical  sense,  as  merely  denoting  that 
which  is  to  be  inferred  from  the  doing  of  a  wrongful  act,  without 
lawful  justification  or  excuse  (c). 

That  such  malice  in  law  is,  in  the  absence  of  any  legal  justifica- 
tion or  excuse,  arising  from  collateral  circumstances,  sufficient  to 
support  the  action  for  slander,  seems  now  to  be  settled  by  the  cur- 
rent  of  authorities. 

Thus,  in  the  case  of  the  King  v.  Lord  Abingdon  (J),  Lord  Ken- 
yon  observed,  that  "  In  order  to  constitute  a  libel,  the  mind  must 

(c)  See  Starkie  on  Evidence,  title  Malice— Intention. 
id)  1  Esp.  C.  228. 


MALICE  IN  LAW.  213 

be  in  fault,  and  show  a  malicious  intention  to  defame';  for  if  pub- 
lished inadvertently,  it  would  not  be  a  libel:  but  where  a  libellous 
publication  is  unexplained  by  any  evidence,  the  jury  should  judge 
from  the  overt  act ;  and  where  the  publication  contains  a 
Vnarge,  slanderous  in  its  nature,  they  should  from  thence  [  "214  ] 
infer  that  the  publication  was  malicious." 

In  the  case  of  the  King  v.  Phillips  (e).  Lord  EUenborough,  ob- 
served, that  "  In  case  of  libels,  where  the  publication  is  proved,  the 
law  will  infer  malice."  In  another  case  (/),  the  same  learned 
judge  observed,  that  "  Every  unauthorized  publication,  which  is 
detrimental  to  another,  is  in  point  of  law,  to  be  considered  as  mali- 
cious." 

In  the  case  of  the  King  v.  CreevT/  (^),  Le  Blanc,  J.  said,  that 
"  Where  a  publication  is  defamatory,  the  law  infers  malice,  unless 
any  thing  can  be  drawn  from  the  circumstances  of  the  publication 
to  rebut  the  inference."  [a  a] 

In  the  case  of  the  King  v.  Almon  (h},  the  defendant,  a  book- 
seller, was  convicted  of  publishing  a  libel,  on  proof  of  the  sale  of 
the  book  containing  the  libel,  by  a  servant  of  the  defendant,  in  his 
shop.  And  it  was  said,  by  the  court,  that  this  was  prima  facie 
evidence  sufficient  to  ground  a  verdict  upon  ;  that  if  the  defendant 
had  had  a  sufficient  excuse,  he  might  have  shown  and  proved  it,  and 
that  any  circumstances  of  exculpation  or  extenuation  ought  to  have 
been  established  by  the  defendant. 

(e)  6  East  470.  (f)  Brown  v.  Croome,  Starkie's  C.  297. 

(g)  2  M.  &  S.  273.  (h)  R.  V.  Almon,  5  Burr.  2686. 

[a  a]  See  Haire  v.  Wilson,  9  B.  &  C.  472,  where  the  court  of  K.  B.  held, 
that  where  the  tendency  of  the  libel  was  injurious  to  the  plaintiff,  it  ought  not 
to  be  left  as  a  question  for  the  jury,  whether  the  defendant  intended  to  injure  the 
plaintiff  [1] 

[1]  The  doctrine  advanced  in  Haire  v.  Wilson,  is  not  as  it  would  seem  from  the 
above  note,  that  the  question  of  libel  or  no  libel  is  to  be  withdawn  from  the  jury, 
where  the  court  are  satisfied  that  the  publication  is  libellous.  That  case  only  de- 
termines that  the  jury  are  not  to  pass  upon  the  intention  of  the  author  or  publisher, 
independent  of,  and  distinct  from,  the  publication,  but  that  they  must  determine  upon 
the  tendency  of  the  publication,  and  find  their  verdict  accordingly.  That  it  is  the 
province  of  the  jury,  and  not  of  the  court,  to  pass  upon  the  question  of  libel  or  no 
libel,  is  clearly  settled  by  the  case  of  Bayiis  v.  Lawrence,  11  Adolph.  &  Ellis  920, 
in  which  the  case  of  Haire  v.  Wilson,  is  reviewed.  See  also  note  [1],  page  358,  voL 
i.  infra. 


215  CIVIL  REMEDY— INTENTION. 

[•215  ]  'Abbot,  L.  C.  J.  in  the  case  of  the  King  v.  Harvey  (i) 
stated  to  the  jury,  that  "  The  man  who  publishes  sland- 
erous matter,  calculated  to  defame  another,  must  be  presumed  to 
have  intended  to  do  that  which  his  publication  is  calculated  to  bring 
about,  unless  he  can  show  to  the  contrary,  and  it  is  for  him  to  show 
the  contrary." 

A  wanton  disregard  of  the  feelings  of  others,  is,  in  point  of  law 
as  well  as  morals,  Inexcusable  ;  so  that  it  is  no  defence  for  the  pub- 
lisher of  a  libel,  to  say  that  he  was  but  in  jest,  for,  as  has  been  ob- 
served by  a  learned  writer,  the  mischief  to  the  party  grieved  is  no 
way  lessened  by  the  merriment  of  him  who  makes  so  light  of  it  (Ji). 
The  mere  absence  of  malice  in  particular  against  the  party  whose 
reputation  is  destroyed,  and  the  excuse  that  the  real  motive  was  not 
malice,  but  a  desire  of  gain,  is  no  better  plea  than  that  which  might 

be  used  by  a  hired  assassin  (/). 
[  *216  ]         If,  however,  the  inference  of  malice  be  a  mere  'infer- 
ence of  law,  it  is  capable  of  being  rebutted  ;  but  not,  it 
should  seem,  otherwise  than  by  proof  of  such  an  occasion  of  publish- 
ing, as  furnishes  a  legal  excuse  for  the  act. 

In  the  abstract,  to  deprive  another,  of  his  reputation,  by  any  wil- 
ful or  negligent  act,  is  immoral  and  illegal ;  but  the  law,  for  wise 
purposes,  and  upon  a  principle  of  policy  and  convenience,  restrains 
the  right  to  damages,  and  affords  a  privilege  and  protection  to  many 
communications,  though  they  deeply  affect  the  characters  of  Individ- 
uals :  but  as  such  a  protection  depends  on  considerations  of  legal 
policy,  it  is  for  the  law  to  prescribe  its  limits  and  boundaries. 

And  the  law  does  not,  as  it  seems,  extend  that  protection  to  any 
case,  merely  because  an  actual  intention  to  injure  is  wanting,  and 
unless  some  recognized  justification  or  excuse  be  supplied  by  the  oc- 
casion and  circumstances  attending  the  publication. 

(i)  2  B.  and  C.  258. 

(Ji)  9  Co.  59.     Moor,  627.     Baw.  c.  73.  s.  14. 

(/)  Haw.  P.  C.  c.  73.  s.  14.  It  is  scarcely  necessary  to  observe  here,  that 
these  observations  do  not  apply  where  words,  in  themselves  offensive,  are  used  in 
jest,  but  without  intention  to  convey  any  injurious  imputation,  and  where  the 
hearers  do  not  understand  the  words  in  that  sense  ;  such  cases  fall  under  a  very 
different  consideration,  for  there  is  not,  in  effect,  any  publication  of  slanderous 
matter- 


MALICE  IN  LAW.  216 

From  some  of  the  older  authorities,  indeed,  it  appears  to  be  doubt- 
ful whether,  if  the  speaker  or  writer  acted  without  malice,  in  the  com- 
monand  popular  sense  of  the  word,  and  intending,  (it  may  be,)  good, 
rather  than  harm,  to  another,  he  was  civilly  responsible  for  his  act. 

In  the  case  of  Brook  r.  Sir  Henry  3Iontague(m'), 
*Coke  cited  a  case,  where  a  clergyman,  in  a  sermon,  re-     [  *217  ] 
cited  a  case  out  of  Fox's  Martyrology,  that  one  Green- 
wood being  a  perjured  person  and  a  great  persecutor,  had  great 
plagues  inflicted  on  him,  and  was  killed  by  the  hand  of  God  ;  whereas 
in  truth,  he  never  was  so  plagued,  and  was  himself  present  at  that 
sermon.     And  he  thereupon  brought  his  action  upon  the  case,  for 
calling  him  a  perjured  person  ;  and  the  defendant  pleaded  not  guil- 
ty ;  and  this  matter  being  disclosed  upon  the  evidence,  Wray,  C.  J. 
delivered  to  the  jury,  that  it  being  delivered  as  a  story,  and  not  with 
any  mnl'ice  or  intention  to  slander  any,  he  was  not  guilty  of  the 
words  maliciously,  and  so  was  found  not  guilty  (n). 

And  Popham  affirmed  it  to  be  good  law,  when  he  delivers  matter 
after  his  occasion  as  a  matter  of  story,  and  not  with  intent  to  slander 
any. 

This  case,  it  is  to  be  observed,  is  no  authority  for  concluding  that 
the  mere  absence  of  a  slanderous  intention  may  furnish  a  legal  de- 
fence, independently  of  a  lawful  occasion  of  publishing ;  for  there 
was  in  that  case,  as  will  be  hereafter  seen,  a  lawful  occasion  which, 
in  the  absence  of  actual  malice,  supplied  a  sufficient  justification. 
For  the  story  was  delivered  by  a  clergyman,  in  the  course  of  dis- 
charging the  duties  of  his  sacred  office. 

*The  plaintiff  brought  an  action  against  one  for  saying  [  *218  ] 
of  him,  that  he  heard  he  was  hanged  for  stealing  of  an 
horse  ;  and,  upon  the  evidence,  it  appeared  that  the  words  were 
spoken  in  grief  and  sorrow  for  the  news.  Twisden,  J.  cited  this, 
as  a  case  which  he  heard  tried  before  Hobart,  J.  who  nonsuited  the 
plaintiff,  because  the  words  were  not  spoken  maliciously,  and  all  the 
court  agreed  that  this  was  done  according  to  law  (o). 

It  does  not  appear,  from  the  short  statement  of  this  case,  what 

(m)  He  cited  14  H.  7.  14.     20  H.  6.  84.  (n)  Cro.  J.  90. 

(o)  Lev.  82.  Mich.  14  Car.  2.     1  Vin.  Ab.  540. 


218  CIVIL  REMEDY— INTENTION. 

^yere  the  particular  circumstances  of  the  case  ;  yet  it  seems,  in 
principle,  that  if  any  one,  trusting  to  an  idle  rumour,  occasions 
damage  to  another,  either  in  law  or  in  fact,  he  is,  on  the  principles 
of  natural  justice,  liable  to  render  amends. 

He  is  at  least  guilty  of  negligence,  in  giving  publicity  to  an  injuri- 
ous and  unfounded  calumny. 

The  law,  in  the  ample  provision  which  it  makes  for  the  convenience 
and  exigencies  of  society,  necessarily  regards  the  occasion  and 
circumstances  of  publication,  and  does  not  afford  indemnity  from 
the  consequences  of  publication  of  injurious  and  noxious  matter, 
except  with  a  view  to  some  useful  and  beneficial  purpose, 
[  *219  ]  where  a  party  may  be  supposed  to  act  honestly  *and  sin- 
cerely in  the  execution  of  some  public  or  private  duty. 
The  gratification  of  curiosity,  by  the  circulation  of  unauthenticated 
rumors,  can  scarcely  be  regarded  as  a  fit  object  of  legal  protection. 
If  so,  it  follows  that  every  one  who  ventures  to  propagate  an  unfound- 
ed calumny,  to  the  injury  of  the  character  of  another,  does  it  at  his 
peril,  and  that,  unless  he  can  show  some  lawful  occasion  for  publish- 
ing, that  is,  some  cause  for  publishing  under  the  particular  circum- 
stances which  the  law  recognizes  as  affording  a  sufficient  excuse,  the 
total  absence  of  an  actual  intention  to  injure  will  not  avail  as  a 
justification. 

It  were  almost  needless  to  observe  that,  in  numerous  cases,  the 
law  gives  an  injured  party  a  compensation  in  damages  against  the 
author  of  the  mischief,  although  the  latter  was  actuated  by  no 
mischievous  intention.  Thus,  if  a  party,  in  the  exercise  of  his  law- 
ful calling  or  business,  casually  injure  the  property  or  possession 
of  another,  he  is  liable  to  make  compensation  in  damages,  although 
he  had  no  intention  to  injure  any  one. 

So  it  is  no  justification  or  excuse  to  a  man,  that  he  published  a 
libel,  to  the  injury  of  another,  merejy  in  the  course  of  his  business 
and  occupation  of  a  printer,  for  he,  as  well  as  others,  is 
[  *220  ]     *bound  so  to  carry  on  his  trade  or  business  as  not   to  in- 
jure others  (p). 

(p)  2  St.  Tr.  7.  547. 


MALICE  IN  LAW.  220 

The  late  case  of  Prosur  v.  Bromage  (q)  affords  an  illustration 
of  these  principles ;  and  bj  this  decision,  the  application  of  the  dis- 
tinction between  malice  in  law  and  actual  malice,  or  malice  in  fact, 
and  the  sufficiency  of  malice  in  law  to  support  the  action,  seem  to  be 
fully  established. 

The  plaintiffs  were  bankers,  and  the  charge  was,  that,  in  answer  to 
a  question  put  by  one  Lewis  Watkins,  whether  he,  the  defendant,  had 
said  that  the  plaintiffs'  bank  had  stopped,  the  defendant's  answer 
was,  it  was  true  he  had  been  told  so,  that  it  was  so  reported  at  C, 
and  that  no  one  would  take  their  bills,  and  that  he  had  come  to  town 
in  consequence  himself.  It  was  proved  that  C.  D.  had  told  the  de- 
fendant, that  there  was  a  run  on  the  plaintiffs'  bank  at  M.  Upon  this 
evidence,  it  was  left  to  the  jury  to  say  whether  the  defendant  had 
acted  mahciously  and  with  ill-will  towards  the  plaintiffs,  and  that 
they  ought  to  find  their  verdict  for  the  defendant,  if  they  thought 
that  he  had  not  acted  maliciously.  After  a  verdict  for  the  defend- 
ant, upon  a  motion  for  a  new  trial,  the  court  (of  King's  Bench) 
held  that  the  law  recognized  the  distinction  between 
•these  two  descriptions  of  malice,  viz  :  malice  in  fact  and  [  *221  ] 
malice  in  law.  That  malice,  in  common  acceptation, 
meant  ill-will  against  a  person  ;  but  in  its  legal  sense,  it  meant  a 
wrongful  act  done  intentionally,  without  legal  justification  or  excuse  ; 
and  that,  in  ordinary  actions  for  slander,  malice  in  fact  was  not  es- 
sential ;  that  malice  in  law  was  sufficient,  and  was  to  be  inferred  from 
the  publishing,of  the  slanderous  matter,  the  act  being  wrongful  and  in- 
tentional, and  without  any  just  cause  or  excuse  (r). 

(q)  4  B.  &  C.  247. 

(r)  Bayley,  J.  delivered  the  judgment  of  the  court,  and  after  stating  the  cir- 
cumstances of  the  case,  observed  :  "  The  learned  judge  considered  the  words 
as  proved,  and  he  does  not  appear  to  have  treated  it  as  a  case  of  privileged  com- 
munication ;  but  as  the  defendant  did  not  appear  to  be  actuated  by  any  ill-will 
against  the  plaintiffs,  he  told  the  jury,  that  if  they  thought  the  words  were  not 
spoken  maliciously,  though  they  might  unfortunately  have  produced  injury  to 
the  plainlifTs,  the  defendant  ought  to  have  their  verdict;  but  if  they  thought 
them  spoken  maliciously,  they  should  find  for  the  plaintiff;  and  the  jury  having 
found  for  the  defendant,  the  question,  upon  a  motion  for  a  new  trial,  was  upon  the 
propriety  of  this  direction.     If  in  an  ordinary  case  of  slander,   (not  a  case  of 


222  CIVIL  REMEDY— INTENTION. 

[  '222  J         'So  if  the  author  of  a  libel,  though  he  never  intend- 
ed to  publish    it,  were  so  negligent  to    keep  it,  that 

privileged  communication,)  vant  of  malice  is  a  question  of  fact  for  the  consider- 
ation of  a  jury,  the  direction  was  right ;  but  if  in  such  a  case,  the  law  implies 
Buch  malice  as  is  necessary  to  maintain  the  action,  it  is  the  duty  of  the  judge  to 
withdraw  the  question  of  malice  from  the  consideration  of  the  jury ;  and  it  ap- 
pears to  us  that  the  direction  in  this  case  was  wrong.  That  malice,  in  some 
sense,  is  the  gist  of  the  action,  and  that,  therefore,  the  manner  and  occasion  of 
speaking  the  words  is  admissible  in  evidence,  to  show  they  were  not  spoken 
with  malice,  is  said  to  have  been  agreed,  (either  by  all  the  judges,  or  at  least 
by  the  four,  who  thought  the  truth  might  been  given  in  evidence  on  the  general 
issue,)  in  Smith  v.  Richardson*,  and  it  is  laid  down,  1  Com.  Dig.  action  upon 
the  case  for  defamation,  G.  5,  that  the  declaration  must  show  a  malicious  intent 
in  the  defendant ;  and  there  are  some  other  very  useful  elementary  books,  in 
which  it  is  said  that  malice  is  the  gist  of  the  action,  but  in  what  sense  the  word 
malice,  or  malicious  intent,  are  here  to  be  understood,  whether  in  the  popular 
sense  or  in  the  sense  the  law  puts  upon  those  expressions,  none  of  these  autho- 
rities state.  Malice,  in  common  acceptation,  means  ill-will  to  a  person  ;  but  in 
its  legal  sense,  it  means  a  wrongful  act  done  intentionally,  without  just  cause  or 
excuse.  If  I  maim  cattle  without  knowing  whose  they  are,  if  I  poison  a  fish- 
ery without  knowing  the  owner,  I  do  it  of  malice,  because  it  is  a  wrongful  act, 
and  done  intentionally.  If  I  am  arraigned  of  felony,  and  wilfully  stand  mute, 
I  am  said  to  do  it  of  malice,  because  it  is  intentional  and  without  just  cause  or 
excuse  :  and  if  I  traduce  a  man,  whether  I  know  him  or  not,  and  whether  I  in- 
tend to  do  him  an  injury  or  not,  I  apprehend  the  law  considers  it  as  done  of 
malice,  because  it  is  wrongful  and  intentional.  It  equally  works  an  injury, 
whether  I  meant  to  produce  an  injury  or  not ;  and  if  J  had  no  legal  excuse  for 
the  slander,  why  is  he  not  to  have  a  remedy  against  me  for  the  injury  it  pro- 
duces'? And  I  apprehend  the  law  recognizes  the  distinction  between  these  two 
descriptions  of  malice,  malice  in  fact  and  malice  in  law,  in  actions  of  slander. 
In  an  ordinary  action  for  words,  it  is  sufficient  to  charge  that  the  defendant 
spoke  them /a/se/y;  it  is  not  necessary  to  state  that  they  were  spoken  malicious- 
ly. This  is  so  laid  down  in  Styles  392,  and  was  adjudged  in  error  in  Mercer 
V.  Sparks.  Owen  51.  Noy  35.  The  objection  there  was,  that  the  words  were 
not  charged  to  have  been  spoken  maliciously  ;  but  the  court  answered,  that  the 
words  were  themselves  malicious  and  slanderous,  and  therefore  the  judgment 
was  affirmed.  But  in  actions  for  such  slander  as  is.  prima  facie,  excusable,  on 
account  of  the  cause  of  speaking  or  writing  it.  as  in  the  case  of  servants'  char- 
acters, confidential  advice,  or  communications  to  persons  who  ask  it  or  have  a 
right  to  expect  it,  malice  in  fact  must  be  proved  by  the  plaintiff;  and  in  Edmon- 
son v.  Stevenson,  B.  N.  P.  8,  Lord  Mansfield  takes  the  distinction  between 
these  and  ordinary  actions  of  slander.     In  Weatherstone  t>.  Hawkins,  1  T.  R. 

*  Wills,  24. 


MALICE  IN  LAW.  223 

through  mere  inadvertence,  the  *contents  became  public,  to    [  *223  ] 
the  detriment  of  another's  reputation,  he  would.no  doubt, 

110,  where  a  master,  who  had  given  a  servant  a  character,  which  prevented  his 
beinjT  hired,  gave  his  brother-in  law,  who  applied  to  him  upon  the  subject,  a 
detail,  by  letter,  of  certain  instances,  in  which  the  servant  had  defrauded  h:m. 
Wood,  who  argued  for  the  plaintiff,  insisted  that  this  case  did  not  differ  from 
the  c:>se  of  common  libels  ;  that  it  had  the  two  essential  ingredients,  slander  and 
falsehood  ;  that  it  was  not  necessary  to  prove  express  malice  ;  if  the  matter 
is  slanderous,  malice  is  implied  ;  it  is  sutficient  to  prove  publication  ;  the  motives 
of  the  party  publishing  are  never  gone  into  ;  and  that  the  same  doctrine  held  in 
actions  for  words,  no  express  malice  need  be  proved.  Lord  Mansfield  said  tha 
general  rules  are  laid  down  as  Mr.  Wood  has  stated  ;  but  to  every  libel  there 
may  be  an  implied  justification  from  the  occasion.  So  as  to  the  words,  instead 
of  the  plaintiff's  showing  it  to  be  false  and  malicious,  it  appears  to  be  incidental 
to  the  application  by  the  intended  master  for  the  character,  and  BuUer,  J.  said 
this  is  an  exception  to  the  geneial  rule,  on  account  of  the  occasion  of  writing. 
In  actions  of  this  kind,  the  plaintiff  must  prove  the  words  "  maUaous  "  as  well 
zs  false.  Duller,  J.  repeats  in  Pasley  v.  Freeman,  3  T.  R.  51,  that  for  words 
spoken  confidentially  upon  advice  asked,  no  action  lies,  unless  express  malice 
can  be  proved  [1].  So  in  Hargrave  v.  Le  Breton,  4  Burr.  2425.  Lord  Mans- 
field states  that  no  action  can  be  maintained  against  a  master  for  the  character 
he  gives  a  servant,  unless  there  are  extraordinary  circumstances  of  express  ma- 
lice. But  in  an  ordinary  action  for  a  libel  or  for  words,  though  evidence  of  ma- 
lice may  be  given  to  increase  the  damages,  it  never  is  considered  as  esfential ; 
nor  is  there  any  instance  of  a  verdict  for  the  defendant  on  the  grouud  of  want 
of  malice.  Numberless  occasions  must  have  occurred,  (particularly  where  a 
defendant  only  repeated  what  he  had  heard  before,  but  without  naming  the  au- 
thor,) upon  which,  if  that  were  a  tenable  ground,  verdicts  would  have  been 
sought  for  and  obtained,  and  the  absence  of  any  such  instance  is  a  proof  of  what 
has  been  the  general  and  universal  opinion  upon  the  point.  Had  it  been  noticed 
to  the  jury  how  the  defendant  came  to  speak  the  words,  and  had  it  been  left  to 
them,  as  a  previous  question,  whether  the  defendant  understood  Watkins  as  ask- 
ing for  information  for  his  own  guidance,  and  that  the  defendant  spoke  what  he 
did  to  Waikins  merely  by  way  of  honest  advice,  to  regulate  his  conduct,  the 
question  of  malice  in  fact  would  have  been  proper  as  a  second  question  to  the 
jury,  if  their  minds  were  in  favour  of  the  defendant  upon  the  first ;  but  as  the 
previous  question  I  have  mentioned  was  never  put  to  the  jury,  but  tliis  was  treat- 
ed as  an  ordinary  case  of  slander,  we  are  of  opinion  that  the  question  of  malice 

[1]  In  Van  Spike  v.  Clevson,  Cro.  Eliz.  541,  it  was  held  not  to  be  actionable  for 
one  man  to  tell  anoiher  confidentialli/,  not  to  trust  a  merchant  for  (it  was  said)  it  u 
only  by  way  of  counsel. 

Vol.  I.  41 


224  CIVIL  REMEDY— INTENTION. 

[  *224  ]     be  considered  amenable  in  damges.     He  had  no  right  'to 
place  the  character  of  another  in  jeopardy  without  lawful 
excuse,  and,  in  law  as  well  as  morals,  is  responsible  for  the 
[  *225  ]     injury  which  his  culpable  *negligence  has  occasioned. 
The  legal  principle  on  which  such  responsibility  is  found- 
ed, is  clearly  delivered  in  Buller's  Law  of  Nisi  Prius. 

Every  man  ought  to  take  care  that  he  does  not  injure  his  neigh- 
bour ;  and,  therefore,   whenever  a  man  receives  a  hurt 
[*  226  ]     through  the  default  of  "another,  though  the  same  were 
not  wilful,  yet  if  it  be  occasioned  by  negligence  or  folly, 
the  law  gives  him  an  action  to  recover  damages  for  the  injury  so  sus- 
tained {q). 

This  principle  comprehends  not  only  the  instance  just  mentioned, 
where  a  writing  not  intended  to  be  published,  is  nevertheless,  divulged 

ought  not  to  have  been  left  to  the  jury.  It  was,  however,  pressed  upon  us  with 
considerable  force,  that  we  ought  not  to  grant  a  new  trial,  on  the  ground  that 
the  evidence  did  not  support  any  of  the  counts  in  the  declaration  ;  but  upon 
carefully  attending  to  the  declaration  and  the  evidence,  we  think  we  are  not 
warranted  in  saying,  that  there  was  no  evidence  to  go  to  the  jury  to  support  the 
declaration,  and  had  the  learned  judge  intimated  an  opinion  that  there  was  no 
such  evidence,  the  plaintiff  might  have  attempted  to  supply  the  defect.  We, 
therefore,  think  that  we  cannot  properly  refuse  a  new  trial,  upon  the  ground 
that  the  result  upon  the  trial  might  have  been  doubtful.  In  granting  a  new 
trial,  however,  the  court  does  not  meant  to  say,  that  it  may  not  be  proper  to  put 
the  question  of  malice  as  a  question  of  fact  for  the  consideration  of  the  jury  ; 
for  if  the  jury  should  think,  that  when  Watkins  asked  his  question,  the  defend- 
ant understood  it  as  asked  in  order  to  obtain  information  to  regulate  his  own 
conduct,  it  will  range  under  the  class  of  privileged  communications,  and  the 
question  of  malice,  in  fact,  will  then  be  a  necessary  part  of  the  jury's  inquiry : 
but  it  does  not  appear  that  it  was  left  to  the  jury,  in  this  case,  to  consider  whe- 
ther this  was  understood,  by  the  defendant,  as  an  application  to  him  for  advice, 
and  if  not,  the  question  of  malice  was  improperly  left  to  their  consideration. 
We  are,  therefore,  of  opinion,  that  the  rule  for  a  new  trial  must  be  absolute. 

In  the  case  of  Duncan  v.  Thwaites,  3  B.  &  C.  585,  Abbot,  L.  C.  J.  observed, 
"  I  take  it  to  be  a  general  rule,  that  an  act,  unlawful  in  itself  and  injurious  to 
another,  is  considered,  both  in  law  and  reason,  to  be  done  maliciously  toward  the 
person  injured,  and  this  is  all  that  is  meant  in  a  declaration  of  this  sort,  which  is 
introduced  rather  to  exclude  the  supposition  that  the  publication  had  been  made 
on  some  innocent  occasion,  than  for  any  other  purposes, 

{q)  B.  N.  P.  95, 


MALICE  IN  LAW.  226 

for  want  of  care,  but  every  case  in  which  a  noxious  publication  re- 
sults from  mere  levity  or  thoughtless  jocularity  ;  for  though  the  actual 
intention  to  produce  mischief  might  not  at  the  moment  actually  in- 
fluence the  mind  of  the  defendant,  yet  he  was  guilty  of  a  wilful  in- 
vasion of  the  natural  and  absolute  right  of  another  man  — an  act 
for  which,  in  point  of  natural  justice,  he  is  responsible,  and  from 
which,  malice,  in  its  legal  sense,  is  necessarily  to  be  inferred. 

The  plea  of  minority  affords  no  defence  to  an  action 
•for  slander  or  libel,  though  a  precedent  is  to  be  found  of  [  *227  ] 
a  plea  that  the  defendant  was  an  infant,  within  the  age  of 
seventeen  (r),  the  validity  of  such  a  plea  was  denied  by  Lawrence, 
J.  in  the  case  of  Woolnoth  v.  Meadows  (s).  And  Lord  Kenyon 
expressly  stated,  that  if  an  infant  utter  slander,  he  is  responsible 
for  it  in  a  court  of  justice  (C). 

But  though  actual  malice  be  not  essential  to  civil  liability,  and 
though  it  be  suflScient  that  the  defendant  has  acted  wilfully,  or 
even  negligently  and  carelessly,  without  a  due  regard  to  the  char, 
acter  and  reputation  of  another,  yet  still  the  mere  act  of  communi- 
cating that  which  is  slanderous,  will  not  subject  a  party  even  to 
civil  liabiUty,  without  some  degree  of  culpability  on  his  part.  If, 
for  instance,  a  servant  or  agent  were,  in  the  ordinary  course  of  his 
duty,  to  deliver  a  sealed  libel,  without  any  knowledge  of  its  con- 
tents, though  he  were  thus  the  actual  instrument  of  publication 
yet  if  he  acted  but  as  the  agent  of  another,  without  any  reason  for 
suspecting  that  any  wrong  was  intended,  he  would  not 
subject  *himself  to  any  civil,  still  less  to  any  criminal,  [  *228  ] 
responsibility. 

This  application  of  a  plain  and  general  principle  of  natural  jus- 
tice, is  too  obvious  to  require  further  observation  in  this  place. 

(r)  Com.  Dig.  Pleader,  2  L.  2.  (5)  5  East.  471. 

(0  8  T.  R.  337.     See  also  Bac.  Ab.  tit.  Infancy.     Starkie  on  evidence,  tit. 
Infant. 


CnAPTEE    IX. 


Justification — Truth. 


[  '229  ]  •Having  thus  observed  upon  the  question  of  intention, 
as  considered  independently  of  the  occasion  of  publish- 
ing and  of  all  collateral  circumstances,  the  subject  is  next  to  be 
considered  in  reference  to  the  occasion  and  circumstances  of  the 
act. 

These  may  either  constitute  an  absolute  and  peremptory  defence 
to  the  action,  independently  of  the  question  of  intention,  or  they 
may  supply  a  qualified  or  conditional  justification,  dependent  on  the 
actual  intention,  of  the  party. 

The  former  class,  'where  the  defence  is  wholly  independent  of  the 
question  of  actual  intention,  is  subject  also  to  a  distinction,  depend- 
ent on  the  existence  or  nonexistence  of  a  probable  cause  for  the  act. 
In  the  first  place,  the  defendant  is  justified  in  law,  and  exempt 
from  all  civil  responsibility,  if   that  which  he  publishes 
[  •230  ]     be  true  (a).     For,  as  has  *already  been  observed,  no 
one,  in  point  of  natural  justice  and  equity,  can  have  any 
title  to  a  false  character  ;  he  can  show  no  legal  interest  in  the  sup- 
pression of  the  truth,  or  in  the  continuance  of  error  ;    it  would  be 
inconsistent  with  every  sound  legal  principle  and  analogy,  to  allow 
him  to  recover  damages  for  an  injury  to  that  which  he  either  does 
not,  or  at  least  ought  not  to  possess ;  and  it  would  be  contrary  to 

(a)  It  may,  perhaps,  be  doubted,  (as  has  already  been  suggested,  supra,  p. 
7,)  whether  it  might  not  be  more  correct  to  consider  the  falsity  of  the  slander 
as  of  the  essence  of  the  wrong,  than  to  treat  the  truth  as  a  collateral  ground 
of  defence;  and  some  reasons,  principally  technical,  have  been  assigned  for 
adopting  the  latter  course.  Supra,  p.  5,  in  the  note. 


ABSOLUTE  JUSTIFICATION— TRUTH.  230 

the  plainest  and  most  obvious  principles  of  public  policy  and  con- 
venience, to  permit  a  man  to  make  gain  of  the  loss  of  that  repu. 
tation  and  character  in  society,  which  he  had  justly  forfeited  by 
his  misconduct  (5). 

Sir  William  Blackstone  (c),  in  his  Commentaries, 
*seems  to  consider  the  defendant's  exemption,  in  this  in-  [  •231  ] 
stance,  as  extended  to  him  in  consideration  of  his  merit, 
in  having  warned  the  public  against  the  evil  practices  of  a  delin- 
quent. He  says,  that  it  is  damnum  absque  injuria,  intimating  that 
the  act  of  the  defendant  does  not  constitute  a  wrong  in  its  legal 
sense  ;  and  then  proceeds  to  observe,  that  "this  is  agreeable  to  the 
reasoning  of  the  civil  law,  "  Uam  qui  nocentem  infamavit  non  est 
cequum  et  honum  oh  earn  rem  condemnari,  peccata  enim  nocentlum 
cognita  esse  et  oportcre  et  expedire.^^  Notwithstanding  this,  there 
seems  to  be  some  difficulty  in  supporting  this  justification,  on  the 
ground  that  the  defendant's  act  is  not,  in  contemplation  of  law,  a 
wrong,  since,  as  will  be  seen,  it  is  considered  as  such  in  the  crim- 
inal proceeding,  and  if  the  act  be  justifiable,  because  it  confers  a 
public  benefit,  it  must  be  so  to  all  legal  purposes  ;  for  it  would 
savour  too  much  of  paradox  to  say,  that  in  respect  of  an  individual 
claiming  a  private  compensation,  the  act  is  innocent,  because  it  is 
beneficial  to  the  public,  but  that,  in  relation  to  the  public  so  bene- 
fited, the  same  act  is  wrongful.  It  may,  therefore,  be 
more  consistent  to  consider  the  *plaintifF  as  having  ex-     [  *232  ] 

{b)  See  Preliminary  Discourse,  By  showing  the  truth  of  the  slanderous 
matter,  yon  do  not  show  that  it  was  not  maliciously  spoken  or  published,  but 
merely  that  the  party  is  not  entitled  to  damages,  because  he  is  guilty  of  the 
charge  imputed.  Per  Holroyd,  J.  in  the  case  of  Fairman  v.  Ives,  5  B.  &  A. 
646. 

On  similar  grounds  of  public  policy,  it  has  been  held,  that  a  man  cannot 
recover  damages  for  any  defamation  which  affects  him  merely  in  respect  of 
some  illegal  trade  or  occupation.  Thus,  it  seems,  that  an  action  cannot  be 
maintained  for  an  alleged  libel  against  the  plaintiff,  in  his  vocation  as  an  ex- 
hibitor of  sparring  matches.     Huntu.  Bell,  1  Bing.  1. 

(c)  8  Bl.  Com.  125.  But  although  the  doctrine  of  the  civil  law,  in  respect 
of  such  actions,  is  by  no  means  free  from  obscurity,  the  defence  seems  clearly  to 
have  been  limited  to  those  instances  where  the  public  was  benefited  by  a  pub- 
lication of  the  truth.     See  Preliminary  Discourse,  xxxvii. 


232    CIVIL  REMEDY— OCCASION  OF  PUBLISHING. 

eluded  himself  from  the  protection  of  the  la"w  by  his  own  misconduct, 
than  to  attribute  the  exemption  to  any  merit  appertaining  to  his  ad- 
versary. 

When  a  plaintifif  is  really  guilty  of  the  offence  imputed  he  does 
not  oflFer  himself  to  the  court  as  a  blameless  party  seeking  a  remedy 
for  a  malicious  mischief;  his  original  misbehaviour  taints  the  whole 
transaction  with  which  it  is  connected,  and  precludes  him  from 
recovering  that  compensation  to  which  an  innocent  person  would  be 
entitled  (c). 

That  the  truth  was  a  good  justification,  does  not  appear  to  have 
been  doubted  in  the  case  of  words  spoken  ;  in  respect  of  an  action 
for  libel,  indeed,  the  contrary  has  been  maintained,  but  the  author- 
ities upon  this  point,  though  not  numerous,  fully  establish  the  valid- 
ity of  such  a  justification. 

In  the  case  of  the  King  v.  Roberts  (tZ),  Lord  Hardwicke,  C.  J. 
is  said  to  have  thus  expressed  himself  on  a  motion  for  an  inform- 
ation against  the  defendant :  "  It  is  said,  that  if  an  action  were 
brought,  the  fact,  if  true,  might  be  justified ;  but  I  think  that  is  a 
mistake,  such  a  thing  was  never  thought  of  in  the  case 
[  *233  ]  of  Harman  v.  Velany  (/).  I  *never  heard  such  a  justi- 
fication in  an  action  for  a  libel  even  hinted  at,  the  law  is 
too  careful  in  discountenancing  such  practices  ;  all  the  favour  that  I 
know  truth  affords  in  such  a  case  is,  that  it  may  be  shewn  in  mitiga- 
tion of  damages  ;  and  of  the  fine  in  an  indictment  or  inform- 
ation" [1]. 

(c)  See  Preliminary  Discourse,  xxxi. 

((/)  B.  R.  M.  T.  8.  G,  2.  MSS.  3  Bac.  Ab.  455.  Dig.  Law.  Lib.  IG.  Sel. 
Ni.  Pri.  1st  Edit.  929. 

(e)  Str.  898. 

[I]  Lord  Hardwicke  in  Michaelmas  term,  8  Geo.  IL  A.  D.  1735,  spoke  of 
the  truth  being  given  in  evidence  in  mitigation  of  damages,  and  in  Underwood 
V.  Parks,  2  Strange,  1200,  Mich.  T.  17.  Geo.  H,  it  is  said  the  defendant  offered 
to  prove  the  words  to  be  true  in  mitigation  of  damages;  and  it  is  still  often 
said  that  the  truth  cannot  be  given  in  evidence  under  the  general  issue  either  in 
bar  or  in  mitigation  of  damages.  In  the  time  of  Lord  Hardwicke,  it  was 
denied  not  only  by  him,  but  by  others,  that  the  truth  could  be  given  in  evidence 
in  bar  of  a  recovery,  and  there  was  therefore  no  inaccuracy  ia  speaking  of  giv- 


ABSOLUTE  JUSTIFICATION— TRUTH.  233 

And  in  another  case,  it  was  said  by  Lee,  C.  J.  (/)  (upon  the 
trial  of  the  defendant  upon  an  information),  that  it  had  always  been 
holden  that  the  truth  of  a  libel  could  not  be  given  in  evidence  by 
way  of  justification  ;  because,  where  the  person  charged  with  any 
crime  is  guilty,  he  ought  to  be  proceeded  against  in  a  legal  course, 
and  not  reflected  upon  in  such  a  manner.  In  the  King  v.  Bicker- 
ton  (cj'),  the  Chief  Justice  (7i)  observed,  (upon  a  motion  for  a  crim- 
inal information),  that  though  truth  be  no  justification  for  a  libel,  as 
it  is  for  defamatory  words,  yet  it  would  be  sufiicient  cause  to  pre- 
vent the  extraordinary  interposition  of  the  court. 

In  the  last  two  cases,  the  dicta  of  the  learned  Judges  cannot  be 
but  understood  as  spoken  with  reference  to  the  criminal  proceeding 
before  them,  and  therefore  as  no  authorities  in  respect  of  an  action. 
— On  the  other  hand,  Hobart,  C.  J.  in  the  case  of 
Lake  v,  Hatton  (Q,  said,  that  a  libel,  though  *the  con-  [  *234  ] 
tents  be  true,  may  be  justified  in  an  action  upon  the  case. 

And  Holt,  C.  J.  laid  it  down  expressly,  that  "  A  man  (k.)  may 
justify  in  an  action  for  words  or  for  a  libel ;  otherwise  in  an  indict- 
ment." 

In  the  case  of  J' Anson  v.  Stuart  Q),  the  truth  was  pleaded  in 
bar  of  the  action  for  written  slander,  and  no  objection  was  made,  or 
exception  taken,  either  by  the  court  or  the  plaintifi"'s  counsel,  to  the 
defendant's  right  to  avail  himself  of  a  defence  of  that  nature. 

Sir  William  Blackstone  seems  to  have  been  of  opinion,  that  the 
truth  was  a  good  justification  in  case  of  an  action  for  libel ;  since, 
after  asserting  that  it  is  a  good  defence  in  case  of  slander  spo- 
ken (m),  he  adds,  "  What  was  said  with  regard  to  words  spoken, 

ing  the  truth  in  evidence  in  mitigation,  for  it  was  then  adnaissible  for  that  pur- 
pose ;  but  since  it  has  been  conceded  on  all  hands,  that  the  truth  may  be  given 
in  evidence  in  justification  of  the  words  spoken,  it  is  inaccurate  and  calculated 
to  produce  a  confusion  of  ideas,  to  speak  of  giving  the  truth  in  evidence  in  mit- 
igation of  damages;  for  if  the  truth  of  the  words  can  be  shewn,  the  defendant 
is  entitled  to  claina  not  merely  that  the  evidence  be  received  in  mitigation  of 
damages,  but  that  it  shall  operate  as  a  bar  to  the  recovery. 

(/)  Sel.  Ni.  Pri.  1st  Ed.  929.  (g)  Str.  498. 

(A)  Sir  J.  Pratt.  ^  (i)  Hob.  Rep.  253. 

(h)  11  Mod.  99.  ,(;,  j  t.  R.  748. 

[m)  3  Bl.  Com.    125. 


234    CIVIL  REMEDY— OCCASION  OF  PUBLISHING. 

will  also  hold  in  every  particular  with  regard  to  libels  lij  printing  or 
writing,  and  the  civil  action  consequent  thereupon  (n). 

With  respect  to  an  action  for  Scandalum  Magnatum,  it  was  re- 
solved in  the  Earl  of  Northampton's  case  (o),  that  "  the  publishing 
of  false  rumors,  either  concerning  the  king  or  of  the  hi-^h 
[  *285  ]  *grandees  of  the  realm  was  in  some  cases  punishable  by 
the  Common  Law  ;  but  of  this  were  divers  opinions.  Yet 
it  was  resolved  in  general,  that  touching  the  matter  and  quality  of 
the  words,  that  they  ought  to  he  false  and  horrible." 

North,  C.  J.  (p)  was  of  opinion,  that  under  the  statute,  the  de- 
fendant could  not  justify  in  an  action  for  scandalum  magnatum. 
But  both  Atkins  and  Scroggs,  justices,  thought  differently  ;  and  the 
latter  held,  that  the  words  in  the  principal  case  might  have  been 
justified  by  showing  the  special  matter  either  in  pleading  or  evidence. 

And  in  Lord  Cromwell's  case  (^),  the  defence  in  such  an  action 
seems  to  have  been  considered  on  the  same  footing  with  a  common 
action  for  slander.  The  general  rule,  therefore,  seems  to  be,  that  in 
an  action  for  words,  their  truth  is  a  good  justification  [1]. 

The  plaintiff  was  charged  as  accessary  to  a  felony,  the  principal 
having  been  acquitted  :  and  it  was  held  to  be  competent  for  the  de- 
fendant to  go  into  evidence  to  prove  his  guilt,  because  what  had  passed 
between  others  could  not  affect  him  (r). 

(71)  See  also  3  Wood.  182  ;  3  Bl.  Com.  125,  14th  Ed. ;  and  Selwyn's  Ni. 
Pri.  1st  ed.  929. 

(o)  12  Rep.  133.  (p)  2  Mod.  150.  (cj)  4  Co.  13. 

[1]  Until  1792  when  the  judges  of  England  gave  their  opinion  in  parliament 
upon  questions  put  to  them  on  the  Libel  Bill,  the  only  authorities  for  the  position 
that  a  defendant  might  plead  the  truth  of  a  libel  in  justification  were  the  dicta  of 
HoBART,  C.  .T.  in  Lake  v.  Hatton,  Hob.  R.  253,  and  of  Holt,  C.  J.  in  an  anon- 
ymous case,  11  Mod.  99,  and  the  acquiescence  of  the  bar  and  the  court  in  J'  An. 
son  V.  Stewart,  1  T.  R.  748.  See  Holt's  Law  of  Libel,  p.  280.  Since  then, 
however,  are  the  cases  of  King  v.  Parsons,  in  which  Lord  Kenyon,  before  whom 
the  cause  was  tried  in  1799,  observed  that  it  was  competent  for  a  defendant  in  an 
action  for  a  libel,  to  flead  the  trvth  of  the  supposed  libel  in  justification  ;  and 
of  Plunket  v.  Cobbelt,  tried  before  Lord  Ellenborough  in  1804.  in  which  that 
learned  judge  observed  in  his  remarks  to  the  jury,  "  in  case  the  libel  had  been 
true  it  would  have  been  open  to  the  defendant  to  have  justified  it  on  the  record." 

(r)  Cook  V.  Field,  3  Esp.  C.  133. 


ABSOLUTE  JUSTIFICATION— TRUTH.  235 

Where  (s)  the  words  imputed  a  charge  of  murder,  for 
which  the  plaintiff  had  been  tried  and  acquitted  *it  was  [  "236  ] 
held  that  the  defendant  might  justify  specially,  and  that 
the  truth  of  such  plea  might  be  tried.  And  it  has  been  said  that 
where  the  defendant  justifies  specially,  by  pleading  the  truth  of  a 
capital  offence  imputed  to  the  plaintiff  (^),  on  such  issue  being  found 
against  the  plaintiff,  he  may  be  put  upon  his  trial  for  the  offence 
without  intervention  of  a  grand  jury. 

The  justification  must  be  pleaded,  and  proved  with  great  pre- 
cision. Thus  if  the  defendant  tax  the  plaintiff  with  having  feloni- 
ously stolen  a  sum  of  money,  it  will  be  no  justification  that  the 
plaintiff  had  in  fact  (m)  stolen  some  other  personal  chattel  [1]. 

So  where  the  defendant  (a:)  said  of  a  counsellor  at 
*law,  "  You  are  a  paltry  lawyer,  and  use  to  play  on  both     [  *237  ] 
bands."     The  defendant  justified  as  to  the  latter  words, 
that  the  plaintiff  had  devised  certain   articles  against  F.  R.  con- 
cerning misdemeanors  supposed   to  have  been  done  by  him,  and. 
afterwards  promised  F.  R.  that  he  should  not  be  molested  by  rea- 
son of  the  said  articles  ;  and  yet,  notwithstanding,  by  the  procure- 
ment of  others,  the  plaintiff  endeavored  to  prosecute  F.  R.  upon 

(s)  England  v.  Ilourke,  3  Esp.  C.  80. 

it)  3  Esp.  R.  133.  Cook  v.  Field.  Many  remarkable  cases  have  occurred, 
where  the  plaintiff's  action  for  slander  imputing  the  commission  of  a  crime,  hag 
occasioned  his  prosecution  ibr  and  conviction  of  the  imputed  offence.  In  the 
case  of  Johnson  v.  Browning,  6  Mod.  217.  Ld.  Holt,  C.  J.  cited  a  case  (Pigot'a 
case,  Cro.  Car.  383.)  where  a  mother  recovered  damages  against  her  son-in-law 
for  having  maliciously  prosecuted  her  for  the  murder  of  his  father.  He,  to  re- 
quite her  kindness,  brought  an  appeal  of  murder,  she  was  thereupon  tried  and 
convicted  at  the  King's  Bench  Bar,  and  carried  down  and  burnt  in  Berkshire. 

And  the  Chief  Justice  mentioned  the  case  of  a  plaintiff  who  brought  his 
action,  the  defendant  having  called  him  a  highwayman;  upon  the  trial  it  ap- 
peared that  he  was  one  ;  he  was  taken  in  court,  committed  to  Newgale  and 
hanged. 

And  Darnell  (adds  the  reporter)  remembered  the  like  fate,  which  befel  a 
client  of  his. 
(w)  Cro.  J,  676. 

[1]  See  to  the  same  effect  Andrews  w.   Van  Duzer,  11  Johns.  R.  38;  Van 
Ness  V.  Hamilton,  19  Id.  349. 
(x)  Cro.  J.  267. 

Vol.  I.  42 


237   CIVIL  REMEDY— OCCASION  OF  PUBLISHING. 

the  articles,  before  the  chancellor  and  commissioners  of  the  Arch- 
bishop of  Canterbury  ;  and  the  plea  was  held  to  be  bad  on  de- 
murrer. 

No  suspicion,  however  strong,  will  amount  to  a  justification  (^). 

Neither  is  common  fame  any  ground  for  justifying  an  extraju- 
dicial charge  (s), 

In  Cuddington  v.  WilTcins  (a),  which  was  an  action  for  publish- 
ing these  words  of  the  plaintiff,  "  He  is  a  thief;"  the  defendant 
pleaded,  that  the  plaintiff  had  been  guilty  of  stealing  six  sheep. 
The  plaintiff  replied  that  after  the  .felony,  and  before  the  publica- 
tion  of  the  words,  he  had  been  pardoned  by  a  general 
[  *238  ]  pardon.  Upon  a  demurrer,  *this  replication  was  holden 
to  be  good,  inasmuch  as  the  guilt,  as  well  as  the  punish- 
ment, is  taken  away  by  a  pardon.  And  it  was  held,  that  it  makes 
no  difference  in  such  case,  whether  the  pardon  be  general  or  spe- 
cial, of  which  the  defendant  might  have  been  ignorant,  for  that 
every  person  who  publishes  slanderous  words  does  it  at  his  peril. 

But  it  was  said,  that  if  he  had  been  convicted  and  pardoned 
afterwards,  it  would  be  otherwise. 

But  (6)  a  pardon  after  a  conviction  of  perjury  will  not  restore 
the  perjured  person  to  his  credit. 

It  has  long  been  settled  (c),  that  the  truth,  if  relied  upon  as  a  jus- 
tification, or  even  in  mitigation  of  damages  [1],  must  be  pleaded. 
And  as  the  degree  of  certainty  and  precision  necessary  to  complete 
a  justification  of  this  nature  is  inseparably  connected  with  the  form 
and  rules  of  pleading,  further  remarks  upon  this  topic  will  be  re- 
served for  the  division  in  which  the  technical  mode  of  framing  the 
plea  is  considered. 

(y)  Powell  V.  Plunkett,  Cro.  Car.  52. 

(z)  Hutt.  13.    Bridg.  62.    Brownlow,  2.  (a)  Hob.  81. 

(h)  Sid.  92.  (c)  Str.  1200.  [1]  See  note  [1]  p.  233,  supra. 


CHAPTER  X. 


Op  Publications  made  in  the  Course  of  Parliamentary  or 
Judicial  Proceedings. 

*The  law,  also,  without  regard  to  the  question  of  in-     [  *239  ] 
tentioD,  and  on  grounds  of  obvious  policy  (a),  repels  the 
claim   to   damages  in  respect  of  any   publication  duly  made  in  the 
ordinary  course  of  a  parliamentary  or  judicial  proceeding. 

In  the  first  place  (J),  it  seems  that  no  member  of  either  house  is 
in  any  shape  responsible  in  a  court  of  justice  for  any  thing  said  in 
that  house,  however  offensive  the  matter  may  be  to  the  feelings,  or 
detrimental  to  the  interest  of  any  individual  (c)  ;  for  policy  requires 
that  those  who  are  by  the  constitution  appointed  to  provide  for  the 
safety  and  welfare  of  the  public,  should,  in  the  exe- 
cution of  their  high  functions,  be  wholly  uninfluenced  *by  [  *240  ] 
private  considerations.  Accordingly,  in  such  cases,  (as 
has  been  asserted  by  a  high  authority  (cZ),  courts  of  law  possess  no 
jurisdiction.  But  the  privilege  does  not  extend  beyond  the  walls  of 
the  house  to  which  the  member  belongs ;  and  a  peer,  who  publishes 

(a)  See  Preliminary  Discourse.  (6)  1  Esp.  R.  226. 

(c)  By  4  Hen.  c.  8.  members  of  parliament  are  protected  from  all  charges 
against  them  for  any  thing  said  in  either  house.  And  this  is  further  declared 
in  Ihe  Bill  of  Rights.     1  W.  &,  M.  st.  2.  c.  2.  See  1  Bl.  C.  164  [1]. 

{d)  Lord  Kenyon,  in  the  King  v.  Lord  Abingdon.     1  Esp.  Rep.  226. 

[I]  By  the  Constitution  of  the  United  States,  Art.  1,  §  7,  it  is  ordained  that 
for  anyspeech  or  debate  in  either  house,  the  senators  and  representatives  in  con- 
gress, shall  not  be  questioned  in  any  other  place  ;  and  a  similar  provision  is  to  be 
found  in  the  constitutions  of  most  of  the  states  of  the  Union  in  respect  to  the 
members  of  the  state  legislatures. 


240  CrVIL  REMEDY— OCCASION. 

(e)  libellous  matter  in  the  public  prints,  as  having  constituted  part 
of  his  speech  in  parliament,  is  as  open  to  an  action  or  prosecution 
as  any  private  individual  [1]. 

The  same  rub,  as  to  impunity,  suggested  and  governed  by  similar 
principles,  applies,  to  judges,  jurors,  and  witnesses,  in  respect  of  any 
thing  published  by  them  in  the  course  of  a  judicial  proceeding. 

Certain  charges  (/)  having  been  preferred  by  the  plaintiff 
against  an  officer  of  his  own  regiment,  the  court  martial,  after  ac- 
quittal, subjoined  the  following  declaration : 

"  The  court  cannot  pass,  without  observation,  the  malicious  and 
groundless  accusations  that  have  been  produced  by  Captain  J. 
against  an  officer  whose  character  has  during  a  long  period  of  service, 
been  so  irreproachable  as  Colonel  Stewart's ;  and  the 
[  *241  ]  court  do  unanimously  declare,  that  the  *conduct  of 
Captain  J.  in  endeavouring  falsely  to  calumniate  the 
character  of  his  commanding  officer,  is  most  highly  injurious  to  the 
good  of  the  service."  For  this  the  plaintiff  brought  his  action 
against  Sir  J.  Moore,  the  president  of  the  court  martial.  Upon 
the  trial  of  the  cause  before  Sir  J.  Mansfield,  C.  J.  it  appear- 
ed, that  the  supposed  libel  formed  part  of  the  opinion  of  the 
court,  delivered  by  the  defendant  to  the  Judge  Advocate,  for  the 
purpose  of  being  submitted  to  the  king,  and  immediately  followed 
the  opinion  of  the  court  martial : — "  that  he,  the  aforesaid  Colonel 
Richard  Stewart,  is  not  guilty  of  either  of  the  charges,  and  the 
court  do  most  fully  and  honorably  acquit  him." 

The  plaintiff  was  nonsuited. 

And  afterwards  a  new  trial  was  refused,  on  the  ground  that  the 

words  complained  of  formed  part  of  the  judgment  of  acquittal.  [2] 

So  it  is  held,  that  no   presentment  {g)  by  a  grand  jury  can  be  a 

(e)  R.  V.  Lord  Abingdon,  1  Esp.  R.  22G.  R.  v.  Creevy,  1  M.  &  S.  273. 

(/)  2  N.R.  341. 

(g-)  Bao.  Ab.  tit.  Libel.  455.  Mo.  627.  Haw.  P.  C.  c.  7.3.  s.  8.  See  also 
the  observations  of  the  court  ia  Johnson  v.  Sutton,  1  T.  R.  493. 

[11  See  Coffin y.  Coffin,  4  Mass.  R.  1. 

[2]  In  another  case  of  an  action  for  an  alleged  libel,  contained  in  a  report  of  a 
military  court  of  infiuiry  appointed  to  investigate  charges  against  the  plainliiF: 
It  was  held,  that  the  report  was  a  privileged   connmunication,  and  could  not 


JUDICIAL  PROCEEDINGS.  ^        211 

Hbel,  not   only  because  persons  who  are  supposed  to  be  returned 

"wUhout  their  own  seeking,  and   are  sworn  to  act  impartially,  shall 

be  presumed  to  have  proper  evidence  for  what  they  do ;  but  also, 

because  it  would  be   of  the  utmost  ill  consequence  in 

any  way  to  discourage  *them  from  making  their  inquiries     [  *242  ] 

with  that  freedom  and  readiness  which  the  public  good 

requires. 

Several  of  the  authorities  in  the  books  cited  relate  to  cases  of 
criminal  prosecution,  but  the  reasons  and  principles  are  equally 
forcible,  when  applied  to  a  civil  action,  the  same  policy  in  both  cases 
opposes  itself  to  the  calling  in  question  the  motives  of  the  parties. 

Witnesses,  like  jurors,  appear  in  court  (7i)  in  obedience  to  the 
authority  of  the  law,  and  therefore  may  be  considered,  as  well  as 
jurors,  to  be  acting  in  the  discharge  of  a  public  duty  ;  and  though 
convenience  requires  that  they  should  be  hable  to  a  prosecution  for 
perjury  committed  in  the  course  of  their  evidence,  or  for  conspiracy 
in  case  of  a  combination  of  two  or  more  to  give  false  evidence,  they 
are  not  responsible  in  a  civil  action  for  any  reflections  thrown  out  in 
delivering  their  testimony. 

The  plaintiff  brought  an  action  (i)  against  one  L.,  and  the  de- 
fendant being  produced  as  a  witness  at  the  trial,  gave  evidence  thau 
the  plaintiff  was  a  common  liar,  and  so  recorded  in  the  StarCham- 
ber ;  by  reason  whereof  the  jury  gave  the  plaintiff  small 
damages.  After  verdict  for  the  'plaintiff  for  this  alleg-  [  *2I3  ] 
ed  slander,  it  was  moved  in  arrest  of  judgment,  that  the 
action  did  not  lie  ;  for  if  it  did,  every  witness  might  be  charged 
upon  such  a  suggestion,  and  judgment  was  given  for  the  defend- 
ant (Jc). 

properly  be  received  in  evidence.  Home  w.  Bentinck,  4  Moore  5G3  ;  8  Price 
226  S,  C.     See  note  to  the  report  of  this  case  in  8  Price,  p.  244. 

{h)  See  2  Inst.  228.  2  Roll.  Rep.  198.  Pal.  144.  1  Vin.  A.  387.  Cro.  Eliz. 
230.  (i)  Harding  y.  Bulman.     Brovvnlow  2.     Halt.  11. 

{k)  It  has  been  doubled,  (not  much  to  the  credit  of  the  law),  whether  a  pre- 
concerted scheme  for  taking  away  the  life  of  another  by  false  evidence,  for  the 
sake  of  obtaining  a  statutable  reward  upon  conviction,  amounts,  when  carried 
into  effect,  to  the  crime  of  murder. — See  Leach's  C  C.  L.  52.     Foster  130,  131* 


43  CIVIL  REMEDY— OCCASION. 

With  respect  to  petitioners  in  parliament  (/),  and  suitors  or  pros- 
ecutors in  courts  of  law,  it  has  been  held,  that  no  proceeding,  ac- 
cording to  the  regular  course  of  justice,  will  make  the  complaint 
amount  to  a  libel,  sd  as  to  render  the  party  criminally  liable,  on  the 
ground  that  it  would  be  a  great  discouragement  to  suitors  to  subject 
them  to  public  prosecutions  in  respect  of  their  applications  to  a 
court  of  justice  ;  and  that  the  chief  intention  of  the  law,  in  pro- 
hibiting persons  to  revenge  themselves  by  libels  or  any  other  private 
manner,  is,  to  restrain  them  from  endeavoring  to  make  themselves 
their  own  judges,  and  to  oblige  them  to  refer  the  decision  of  their 
grievances   to   those   whom    the   law  has  appointed    to  determine 

them  (?w). 
[  '244  ]         *And  the  same  reasons  oppose  themselves  to  allowing 
an  action  to  be  maintained,  grounded  upon  such  a  pro- 
ceeding. 

In  the  case  of  Lake  v.  King  (n),  the  plaintiff  declared  that  he 
was  a  doctor  of  laws,  and  vicar-general  to  the  Bishop  of  Lincoln  ; 
and  then  set  forth  the  libel  complained  of,  which  charged  him  with 
extortion,  vexation,  oppression,  and  other  misdemeanors  in  his  oflSce. 

The  defendant  pleaded  that  part  of  the  matter  was  true,  and  that 
therefore  he  procured  the  petition  (which  was  the  libel  complained 
of)  to  be  engrossed,  and  delivered  to  the  committee  appointed  by 
the  commons  to  hear  and  examine  grievances  ;  and  that  afterwards, 
for  the  better  manifestation  of  the  grievances  contained  in  the  said 
petition,  he  caused  the  same  to  be  printed,  and  delivered  to  the 
members  of  the  committee.  The  plaintiff  demurred.  It  was  agreed 
on  all  hands,  that  the  exhibiting  the  petition  to  the  committee  of 
parliament  was  lawful,  and  that  no  action  lay  for  it,  although  the 
matter  contained  in  the  petition  was/aZse  and  scandalous,  because 
it  was  in  the  summary  course  of  justice,  and  before  those  who  had 
power  to  examine  whether  it  was  true  or  false. 

(Z)  See  the  resolution  of  the  House  of  Commons  in  the  case  Kemp  v.  Gee,  9 
Feb.  8.  W.  3.     See  post  p.  245. 

(m)  Dyer,  285.  2  Ins.  228.  2  Buls.  269.  Godb.  340.  Pal.  145.  188.  Vent. 
23.  Haw.  PI.  C.  c.  73.  s.  8.    3  Bac.  Ab.  499.     3  Lev.  169.     4.    Rep.  14- 

(n)   1  Saun. 131. 


JUDICIAL  PROCEEDINGS.  246 

•It  appears  that  this  case  (o)  was  much  considered,     [  '245  ] 
and  that  judgment  was  given  for  the   defendant  after  it 
had  depended  twelve  terms,  by  Hale,  C.  J.  and  Twisden  and  Rams^ 
ford,  Justices,  on  the  ground  that  it  was  the  order  and  course  of 
proceeding  in  parliament  to  print  and  deliver  copies  of  petitions,  ct 
which  the  court  would  take  notice.  .      -,       -     . 

But  it  was  held  that  to  have  distributed  the  pnnted  copies  to  any 
but  members  of  parhament  would  have  been  actionabe. 

And  that  in  general,  where  the  printing  was  not  warranted  by 

the  nee  ss  ;  of  so  great  a  number  of  copies,  to  print  them  would 

e  acrnable  (,)  ;  tut  that,in  the  principal  case,  the  prmtmg  them 

(which  is  a  publishing  of  them  to  the  prmters  and  compositors  ) 

^Is  not  so  great  a  publication  as  to  have  so  many  copies  transcribed 

'^T;;!:' :' have  been  urged  in  favour  of  the  plaintiif,  that  the 
complaint  was  made  to  a  court  -^-^.  ^^^^  ^^  7^!j  ,^^  ["; 
But  in  the-case  of  Kemp  v.  Gee  (5),  it  was  resolved  by  the  House 
of  Commons,  that  Gee  was  guilty  of  a  breach  of  privi- 
lege  in  sueing  Kemp  and  others  'for  a  libel,  supposed  to  [  246  ] 
be  contained  in  a  petition  presented  to  the  house  for  a 
redress  of  grievances,  and  that  all  petitions  to  them  were  lawful,  or 
at  least  punishable  by  themselves  only  [!]• 

(0^  Lev  241.    1  Mod.  58.  Sid.  414.  i?)  Sid-  414. 

il  9  Feb  8  W.  3.     See  C.   J.  Holt's  argument   in  the  case  of  Ashby  v. 
Whl     D  g.  L.  L.  18.  1  Salk.  19.  3  Salk.     17  Holt.  Rep.  524. 

ri    There  is  no  case  in  the  Americau  Reports  of  an   act.on  for  a  hbel  sup- 

podl  be  Contained  in  a  petition  to  congress  or  to  tbe  ^^f^^^^^ 

of  the  states  ;   but  there  are  numerous  cases  of  actions  for  hhds  alleged  to  exist 

in  neiiuln     memorials  and  remonstrances  presented  to  the  ar>VO^nUns  fower  of 

he  s  a  e  o;"o  officers  possessing  the  power  of  appointment  to  or  removal  from 

If^ce     Th    principle  held  in  those  cases,  is  that  such  commumcaUons  are  ^nma 

;f  :;o  be  :o'nsidered,n.iZe,..,  i.  e.  the  individuals  presentmg  th-  -   "pon 

minciules  of  public  policy,  to  be  presumed  to   act  rnnocently,  until  it  be   ho«n 

Sy  he  party  complaining  of  having  been  slandered,  that  they  were  actuated  by 

Lp    s?lL.     In  accordance  with  this  principle   were    decided  the  cases  o 

BfanhaTd  «.    Thorn,  5  Johns.  R.  508;   Vanderzee  ..  McGregor,  12  Wendell 

6  5     Howard  ..  Thompson.  21   Id.  319;  O'Donaghue   -•  McGovern  23  Id. 

26    '  See  also  2  Serg.  &  Rawle.  23  ;  4  Id.  420  ;  3  Pick.  379  ;  1  Tyler  164    2 


246  CIVIL  REMEDY— OCCASION. 

So  no  action  lies  for  any  allegation,  pleading,  or  other  matter  (r) 
pullished  in  the  usual  course  of  a  civil  or  criminal  proceeding  in 
courts  of  justice.  The  reason  for  which  is,  that  (s)  if  actions  should 
be  permitted  in  such  cases,  those  who  have  just  cause  of  complaint 
would  not  dare  to  complain,  for  fear  of  infinite  vexation.  And,  as 
was  observed  hj  Lord  Mansfield,  C.  J.  (t}  there  can  be  no  scandal 
if  the  allegation  be  material  ;  and  if  it  be  not,  the  court  before 
whom  the  indignity  is  committed,  by  immaterial  scandal,  may  order 
satisfaction,  and  expunge  it  out  of  the  record,  if  it  be  upon  the 
record. 

Thus  where  (w)  the  plaintiff  declared  that  the  de- 
[  *2-i7  ]  fendant,  *in  a  certain  affidavit  before  the  court,  had 
sworn  that  the  plaintiff  in  a  former  affidavit  had  sworn 
falsely  ;  the  court  held  that  this  was  not  actionable,  for  that  in 
every  dispute  in  a  court  of  justice,  where  one,  by  affidavit,  charges 
a  thing  which  the  other  denies,  the  charges  must  be  contradictory, 
and  there  must  be  affirmation  of  falsehood  ;  and  this  being  necessary 
in  a  legal  proceeding,  no  action  would  lie  for  it. 

So  in  trespass  (x),  if  the  defendant,  in  his  plea  of  justification, 
falsely  aver  that  the  plaintiff  was  a  bankrupt,  and  that  the  defend- 
ant had  a  commission  upon  the  statute,  by  virtue  of  which  those 

Id.  129  ;  and  the  late  English  cases,  Woodward  v.  Lander,  6  Carr.  &  Payne 
548,  and  Blake  v.  Pilford,  1  Moody  &  Robinson  198 ;  and  it  seems  that  no  ac- 
tion will  lie  ihough  the  petition  be  presented  in  a  quarter  not  authorized  to  grant 
its  prayer,  if  in  presenting  it  the  parties  act  in  good  faith,  Fairmaa  v .  Ives,  5 
Barn.  &  Aid.  647. 

(r)   1  Roll.  33.  (s)  4  Coke,  14.  (/)  2  Burr.  817. 

(u)  Astley  v.  Young,  2  Burr.  817.  So  where  in  an  action  on  the  case  by  A. 
against  B.,  the  plaintiff  declared  that  he  took  his  oath  in  B.  R.  against  B.  of 
certain  matters,  to  bind  him  to  his  good  behaviour ;  and  thereupon  B.  said 
falsely  and  maliciously,  and  intending  to  scandalize  the  plaintiff,  "  There  is  not 
a  word  true  in  that  affidavit,  and  I  will  prove  it  by  forty  witnesses."  On  motion 
in  arrest  of  judgment,  the  jury  having  by  their  verdict  found  the  words  to  be 
false  and  malicious,  it  was  holden  by  the  court,  that  the  action  was  not  main- 
tainable, because  "  the  answer  which  B.  made  to  the  affidavit  was  a  justification 
in  law,  and  spoken  in  defence  of  himself,  and  in  a  legal  and  judicial  way." — 
Roll.  Ab.  87.  pi.  4.  Sir  W.  Jones,  431.  Mar.  20.  pi.  45.  Cited  by  I^Ir.  x'  Hol- 
royd  in  Hodgson  v.  Scarlett,  1  B.  and  A.  244.  (x)  Cro.  J.  432. 


JUDICIAL  PROCEEDINGS.  247 

goods  were  delivered  to  him  ;  yet  the  plaintiff,  for  the  words  cannot 
maintain  an  action. 

In  Weston  v.  Dohniet  (?/),  the  plaintiff  declared,  that  there  was 
a  suit  in  the  spiritual  court,  between  one  A.  and  the  defendant, 
wherein  A.  produced  the  now  plaintiff  as  a  witness  ;  that  the  de- 
fendant, having  a  day  given  to  except  against  the  witnesses,  put 
in  his  exceptions  in  writing,  alleging,  that  the  now  plain- 
tiff was  not  a  competent  witness,  and  *that  there  ought  [  *2'i8  ] 
not  any  credit  to  be  given  unto  him,  because  he  was  per- 
jured. Whereupon  the  plaintiff  (pending  the  suit)  brought  the  ac- 
tion for  this  scandal ;  but  the  whole  court  held  that  the  action  was 
not  maintainable,  because  the  proceeding  was  in  the  common  course 
of  justice,  and  not  ex  malitia. 

And  in  criminal  prosecutions,  it  seems  to  be  perfectly  well  es- 
tablished, that  no  action  will  lie  for  any  distinct  matter  disclosed  in 
the  course  of  such  a  proceeding,  but  that  the  party  must  seek  his 
remedy  for  a  malicious  and  groundless  prosecution,  either  by  writ 
of  conspiracy  or  by  a  special  action  on  the  case,  founded  upon  the 
whole  of  the  circumstances  (2). 

Sir  Richard  Buckley  («)  brought  an  action  against  Owen  "Wood 
for  exhibiting  a  bill  aoiainst  him  in  the  Star  Chamber,  and  charsiinor 
him  with  several  matters  examinable  in  that  court :  and  charmns: 
him  further,  that  he  was  a  maintainor  of  pirates  and  murderers, 
and  a  procurer  of  pirates  and  murderers,  which  offences  were  not 
determinable  in  the  Star  Chamber. 

And  it  was  resolved  by  the  whole  court,  that  for  any  matter  that 
was  contained  in  the  bill  that  was  examinable  in  said 
court,  no  action  lies,  'although  the  matter  be  merely  [  *249  ] 
false,  because  it  was  in  the  course  of  justice  ;  and  that 
this  agreed  wiih  the  judgment  before  given  in  Cutler  v.  Dixon,  (6)  : 
But  it  was  also  resolved,  that  for  the  words  not  examinable  in  the 
Star  Chamber,  an  action  on  the  case  lies,  for  that  cannot  be  in  a 

(y)  3  Bl.  Com.  126.     10  Mod.  210.  219.  300.     Str.  691. 

(z)  3  Bl.  Cora.  126.     10  Mod.  210.  219.  300.     Str.  691. 

(a)  4  Co.  14. 

ib  Dyer,  285. 

Vol.  I.  43 


249  CIVIL  REMEDY— OCCASION. 

course  of  justice  [1]  ;  and  that  if  such  a  matter  might  be  inserted 
in  bills  in  so  high  a  court  to  the  great  slander  of  the  parties,  and 
they  cannot  answer  it  to  clear  themselves,  nor  have  their  action  as 
well  to  clear  themselves,  as  to  recover  damages  for  the  great  in- 
jury and  wrong  done  them,  great  inconvenience  would  ensue. 

That  by  law,  no  murder  or  piracy  could  be  tried  by  bill,  but  by 
indictment  only ;  and  therefore,  that  the  defendant  had  not  only 
mistaken  the  proper  court,  but  the  manner  and  nature  of  the  bill 
had  not  any  appearence  of  a  suit  in  the  ordinary  course  of  justice. 

But  that  if  a  man  brought  an  appeal  of  murder  returnable  in  the 
common  pleas,  no  action  would  lie  ;  for,  though  the  writ  was  not 
returnable  before  competent  judges,  yet  it  is  in  the  nature  of  a  law- 
ful suit,  namely,  by  writ  of  appeal." 

The  first  part  (c)  of  this  resolution  has  been  frequent- 
[  *250  ]     ly  confirmed,  and  extends  to  all  proceedings  *in  the  reg- 
ular course  of  justice,  and  to  actions  for  scandalum  mag- 
natum(J).  , 

The  defendant  (e)  brought  a  writ  of  forger  of  false  deeds  against 
Lord  Beauchamp  :  and,  pending  the  writ,  Lord  B.  brought  an  ac- 
tion for  the  scandal.  The  defendant  justified  by  his  having  the  said 
writ  before.  Upon  demurrer,  the  justification  was  holden  to  be 
good,  and  out  of  the  intendment  of  the  law  and  statutes  of  slander. 

And  if  the  publication  be  made  in  the  course  of  a  judicial  pro- 
ceeding, it  does  not  appear  to  be  essential  to  the  justification  that 
the  defendant  strictly  observed  the  technical  mode  of  proceeding. 

The  plaintiff  declared,  that  he  made  an  affidavit  to  have  the  de- 
fendant bound  over  to  his  good  behaviour  :  and  that  the  defendant, 
in  the  hearing  of  the  justices  and  officers  (/)  of  the  court  and 
others  present,  said,  "  There  is  not  a  word  of  truth  in  that  affida- 
vit, and  I  will  prove  it  by  forty  witnesses."  And  it  was  held  that 
the  words  were  justifiable,  being  in  a  judicial  way  [2]. 

(c)  2  Inst.  228.     Roll.  Ab.  87.  pi.  4.     Sir  W.  Jon.  431. 

(d)  2  ,  Buls.  269.  2  Burr.  808.     3  Bac.  Ab.  492. 

(e)  Lord  Beauchamp  v.  Sir  R.  Croft,  Dyer  285. 
(/)  Jo.  341.    Mar.  20.     Boulton  v.  Clapham. 
[1]  See  post,  p.  252. 

[2]  See  comments  of  Chancellor  Walworth  on  the  case  of  Boulton  v.  Clap- 
ham,  in  Hastings  v.  Lusk,  22  Wendell  419.  See  also  Keaa  v.  McLaughlin,  2 
Serg.  &  Rawle  470, 


JUDICIAL  PROCEEDINGS.  250 

And  the  same  rule  obtains  were  application  is  made  in  the  usual 
course  to  a  magistrate  or  other  peace  oflBcer. 

The  defendant  went  to  a  justice  ((/)  of  the  peace  *for     [  *251  ] 
a  warrant  against  the   plaintiff,  for  stealing  his  ropes. 
The  justice  said,  "Be  advised,  and  look  what  you  do:"  and  the 
defendant  replied,  "  I  will  charge  him  with  flat  felony,  for  stealing 
my  ropes  from  my  shop." 

The  court  agreed,  that  these  words  being  spoken  to  a  justice  of 
the  peace,  when  he  came  for  his  warrant,  which  was  lawful,  would 
not  maintain  an  action,  for  if  they  could,  no  other  would  come  to  a 
justice  of  the  peace  to  inform  him  of  a  felony  [1] .  But  where  the 
question  arose,  whether  the  clerk  to  a  magistrate  could  be  called  on 
as  a  witness,  to  state  whether  he  had  not,  by  the  defendant's  orders, 
written  an  extra-judicial  affidavit  (which  was  charged  in  the  declar- 
ation to  be  a  libel),  and  delivered  it  to  the  magistrate,  "Wood,  B. 
ruled  that  the  question  tended  to  criminate  the  witness,  though  he 
acted  merely  as  a  clerk  (K). 

(g)  Hutt.  113.     Ram  v.  Lamley. 

(/t)  Maloney  v.  Barlley,  3  Camp.  210.  The  learned  Baron  observed,  "I 
think  the  questions  proposed  tend  to  criminate  the  witness.  The  affidavit  which 
he  is  supposed  to  have  copied  and  delivered  to  the  magistrates  is  alleged  by  the 
plaintiff  to  be  libellous,  and  it  was  extra-judicial ;  therefore,  all  concerned  in 
writing  and  publishing  it  are  in  point  of  law  guilty  of  a  misdentieanor.  Had 
the  affidavit  been  made  in  the  course  of  a  judicial  proceeding,  no  indictment  nor 
action  could  have  been  maintained  against  the  clerk,  whatever  might  have  been 
the  nature  of  its  contents.  But  the  affidavit  being  voluntary  and  extra-judicial, 
1  cannot  take  notice  that  the  person,  before  whom  it  is  pretended  to  be  sworn, 
was  a  magistrate,  or  allow  any  privilege  to  those  who  were  employed  in  framing 
it.  The  witness  is  in  the  common  situation  of  a  person  who  has,  without  au- 
thority written  a  copy  of  a  libel  and  delivered  it  to  a  third  person.  If  his 
master,  or  if  the  magistrate,  had  ordered  him  to  do  so,  this  would  have  been 
no  justification".  It  has  been  held,  that  the  mere  delivery  of  a  libel  to  a  third 
person,  by  one  conscious  of  its  contents,  amounts  to  a  publication,  and  is  an 
indictable  offience.  1  take  the  question  to  be,  whether  the  witness  was  not  con- 
cerned in  writing  the  affidavit,  and  delivering  it  to  the  magistrate,  and  this  I 
am  of  opinion  he  is  not  bound  to  answer.  So  in  the  case  of  M'Gregor  v. 
Thwaites,  3  B.  &  C.  24.  it  was  held  to  be  no  answer  to  the  action,  that  the 
matter  published  by  the  defendants  was  a  correct  report  of  what  actually  took 
place  in  the  presence  of  a  magistrate,  inasmuch  as  it  appeared  that  he  was  not 
then  called  on  to  act,  either  in  a  judicial  or  magisterial  capacity. 

[1]  An  action  of  slander  does  not  lie  for  a  charge  of  a  criminal  oSence  made 


252  CIVIL  REMEDY— OCCASION. 

[  *252  ]  *Bj  the  latter  resolution,  in  the  case  of  Buclhy  t. 

TToocZCO ,  the  court  decided  that  scandalous  matter  ivould 
he  actionable,  if  exhibited  by  means  of  an  improper  process,  and  in 
a  court  which  had  no  jurisdiction  over  the  subject  matter  ;  but  it 
plainly  appears  that  the  court  held,  that  both  impropriety  of  process 
and  want  of  jurisdiction  must  concur  to  deprive  the  defendant  of  his 
justification  ;  for  it  was  expressly  said,  that  the  bringing  a  writ  of 
appeal  of  murder  in  the  Common  Pleas  would  not  be  actionable  ; 
since,  though  they  wanted  jurisdiction  in  the  particular  instance,  yet 
that  the  proceeding  by  writ  of  appeal  was  in  the  nature  of  a  lawful 

suit. 
[  '253  ]         *In  Lake  v.  King  (^),  the  court  said,  that  notwith- 
standing what  was  reported  in  Buckley's  case,  it  was 
held  that  want  of  jurisdiction  will  not  make  a  libel,  for  it  is  only  the 
error  of  counsel. 

Powell,  J.  (0  is  reported  to  have  said,  "  I  have  heard  my  Lord 
Hale  say,  that  for  putting  matters  in  a  bill,  of  which  the  court  hath 
no  cognizance,  action  docs  not  lie  against  the  plaintiff,"  though  in 
the  fourth  report  it  is  laid  down  otherwise. 

Serjeant  Hawkins  (?n),in  his  Pleas  of  the  Crown,  observes,  "  It 
has  been  holden  by  some,  that  no  want  of  jurisdiction  of  the  court, 
to  which  such  a  complaint  is  exhibited,  will  make  it  a  libel,  because 
the  mistake  of  the  court  is  not  imputable  to  the  party,  but  to  his 
counsel.     Yet,  if  it  shall  manifestly  appear,  from  the  whole  circum- 
stances of  the  case,  that  a  prosecution  is  entirely  false,  malicious,  and 
groundless,  and  commenced  not  with  a  design  to  go  through  with  it 
but  to  expose  the  defendant's  character  under  a  shew  of  legal  pro- 
ceeding, I  cannot  see  any  reason  why  such  a  mockery  of  public' jus- 
tice should  not  rather    aggravate  the  offence  than  make  it  cease  to 
be  one,  and  make  such  scandal  a  good  ground  of  indictment  at  the 
suit  of  the  king,  as  it  makes  the  malice  of  the  proceeding 
[  *254  ]     *a  good  foundation  of  an  action  on  the  case,  at  the  suit 
of  the  party,  whether  the  court  had  jurisdiction  or  not." 

to  a  magistrate  on  which  a  warrant  issues,  although  the  accused  be  discharged 
after  examination,  Schock  v.  McChesney,  2  P.  A.  Browne's  R.  0,  App. 

(i)  4  Co.  14.         (i)  1  Vin.  Ab.  389.  note  to  pi.  67.         (Z)  2  Lut.  1571. 

(to)  pi.  Cr.  73  s.  8.    See  also  Serj.  William's  note,  1  Saund.  132. 


JUDICIAL  PROCEEDINGS.  254 

From  these  authorities  it  may  be  collected  generally,  that  an  ac. 
Hon  of  slander  cannot  be  maintained  for  any  thing  said,  or  otlierivise 
published,  either  hjajudge,a2mrtij(n~),oraivitness,  in  the  due 
course  of  a  judicial  proceeding,  whether  criminal  or  civil,  though 
for  a  malicious  and  groundless  prosecution,  an  action,  and  perhaps 
an  indictment,  maj  be  supported,  founded  on  the  Avhole  proceed- 
ing (o> 

It  must,  however,  be  recollected,  that  the  justification  does  not 
extend  to  any  publishing  which  the  usual  course  of  judicial  proceed- 
ing does  not  warrant.  Thus,  in  Lake  v.  King,  the  great  doubt  was  not 
whether  the  exhibiting  the  petition  to  parliament  was  lawful  or  not, 
but  whether  the  defendant  was  warranted  in  printing  and  publishiQo- 
ic  in  the  manner  alleged  (jo)  in  his  plea. 

And  so,  in  the  case  of  Hare  v.  Meller  (q),  it  was  adjudged  to  be 
lawful  to  present  a  petition  to  the  queen,  though  reflecting  upon  the 
character  of  the  plaintiff;  but  deemed  to  be  actionable 
afterwards  *to  divulge  the  contents  to  the   disgrace   of     [  *255  ] 
the  person  intended. 

And  though  it  be  matter  of  public  policy,  that  the  causes  for  the 
exercise  of  authority  in  the  dismissal  of  an  officer  should  be  made 
known,  yet  it  seems  that  such  a  publication  must  be  limited  accord- 
ing to  the  nature  of  the  official  duty  of  the  defendant. 

Thus  in  the  case  of  Oliver  v.  Bentinck  (u),  although  it  was  held 
that  the  defendant,  being  Governor  in  Council  of  Fort  St.  George, 
would  be  justified  in  publishing,  according  to  the  fact,  that  the  Court 
of  Directors  had  resolved  to  dismiss  the  plaintiff  from  the  service 
for  a  gross  violation  of  the  trust  reposed  in  him  as  commanding  offi- 
cer of  the  Molucca  Islands,  and  that  he,  the  defendant,  had  been 
ordered  to  erase  his  name  from  the  army  list,  yet  it  was  held,  that  it 
was  essential  to  the  defendant's  plea  to  show  on  what  account  it  was 
part  of  his  duty  to  publish  the  alleged  libel  (a;). 

(n)  As  to  the  case  of  an  advocate,  vide  infra,  (o)  Vide  infra. 

(p)  1  Saund. 132. 

(q)  3  Lev.  169.  See  also  4  Rep.  14.  See  also  R.  v.  Creevy,  1.  M.  &  S. 
273,  and  the  ensuing  chapter. 

(u)  3  Taunt.  456. 

(j)  And  for  want  of  shewing  this,  the  plea  was  held  to  be  defective,  but 
leave  was  given  to  amend. 


256  CIVIL  REMEDY— OCCASION. 

•Where,  however,  a  party  claims  title  to  an  estate,  to 
[  *256  ]  the  injury  of  the  real  owner,  though  he  does  it  extra- 
judicially, yet  is  he  not  liable  in  an  ordinary  action  for 
Blander  of  title,  but  the  plaintiff  must  recover,  if  at  all,  by  means  of 
a  special  action  on  the  case,  shewing  that  there  was  no  colour  or 
probable  cause  for  the  claim  (y). 

Mansfield,  C.  J.  observed,  that  it  was  better  for  the  company,  for  the  country, 
and  for  the  plaintiff  himself  (according  to  the  report,)  that  the  cause  of  his  dis- 
missal should  be  stated,  than  that  it  should  be  supposed  that  the  East  India 
Company  did  it  suo  arhilrio- 

Heath,  J.  observed,  that  it  was  the  constant  practice  here,  that  when  a  delin- 
quent has  been  brought  to  a  court-martial,  the  commander  in  chief  has  directed 
the  sentence  to  be  read  at  the  head  of  every  regiment. 

Lawrence,  J.  said,  "  I  suppose  the  plaintiff's  object  was  to  lay  before  a  jury 
the  circumstances  of  this  gentleman's  conduct,  by  a  question  to  be  raised  on  this 
record  ;  that  could  never  be  permitted  in  this  form  ;  but  the  plea  is  certainly  de- 
fective, for  the  order  is  issued  to  the  governor  in  council ;  and  it  is  not  shown 
that  what  the  defendant  did,  he  did  as  governor  in  council  ;  he  only  pleads  that 
he  did  it  as  governor,  and  does  not  show  how  it  became  his  duty  to  do  this  in 
his  individual  capacity  as  governor. 

Chambre,  J.  "  The  only  doubt  I  have  is,  that  the  plea  does  not  state  on  what 
account  it  became  an  act  in  the  execution  of  the  defendant's  duty  to  publish  this. 
Can  we  suppose  that  he  had  a  right  to  publish  it  in  hand-bills  and  newspapers? 
The  only  authority  he  shows  is  for  erasing  the  name  from  the  army  list,  not  for 
the  publication. 

(y)  Sir  G.  Gerard  v.  Dickenson,  4  Co.  28.    Goulding  v.  Herring,  infra.  290. 


CHAPTER    XI. 


Parliamentary  and  Judicial  Reports. 

•Upon  the  question,  how  far  the  reporting  of  parlia- 
mentary proceedings  can  be  deemed  libellous  some  dif-     [  *257  ] 
erence  of  opinion  has  prevailed. 

Upon  an  information  against  the  defendant,  for  publishing  (a) 
"  Dangerfield's  Narrative,"  he  pleaded  that  he  was,  at  the  time  of 
the  publication,  Speaker  of  the  House  of  Commons,  and,  as  such, 
had  a  right  to  publish  the  votes  and  acts  of  the  house,  and  that  the 
narrative  was  printed  and  published  as  parcel  of  the  proceedings  ; 
and  notwithstanding  this,  the  court  gave  judgment  for  the  king  (6). 

But  in  the  King  v.  Wright  (c),  an  application  was  made  to  the 
Court  of  King's  Bench  to  grant  a  criminal  information  against  the 
defendant  for  printing  and  publishing  a  libel  on  an  indi- 
vidual. Upon  *the  defendant's  affidavit,  it  appeared  that  [  *258  ] 
the  charge  complained  of  was  a  paragraph  contained  in 
the  report  of  the  Committee  of  Secrecy  of  the  House  of  Commons, 
a  literal  copy  of  which  he  had  published. 

After  hearing  counsel  on  the  part  of  the  applicant,  the  information 
was  refused,  Lord  Kenyon,  C.  J.  observing,  "  As  this  was  a  true 
copy  of  the  report  of  the  House  of  Commons,  I  think  there  was  nob 
the  least   pretence  for  the  motion ;  the  application  supposes  that  the 

(a)  R.  V.  Williams  2  Show.  R.  471.  Comb.  18.  See  Sir  R.  Atkyns  on 
the  Power  of  Parliament. 

(b)  This  case  was  reprobated  by  Lord  Kenyon,  C.  J.  and  Grose,  J.  giving 
judgment  in  the  King  v.  Wright,  8  T.  R.  293. 

(c)  8  T.  R.  293. 


258  CIVIL  REMEDY— OCCASION. 

publication  is  a  libel,  but  it  is  impossible  to  admit  that  the  proceeding 
of  either  of  the  houses  of  parliament  is  a  libel. 

"  The  case  of  Sir  W.  Wilhams,  which  was  principally  relied  on, 
happened  in  the  worst  of  times,  but  that  has  no  relation  to  the  pres- 
ent case.  There  the  publication  was  the  paper  of  a  private  individ- 
ual, and  under  pretence  of  the  sanction  of  the  House  of  Commons,  aa 
individual  published  ;  but  this  is  a  proceeding  by  one  branch  of  the 
legislature,  and  therefore  we  cannot  inquire  into  it." 

Grose,  J.  said,  "  On  looking  into  the  judicial  proceedings  of  this 
court,  I  find  no  instance  of  such  an  information  as  the  present ;  tho 
case  of  Sir  W.  Williams  is  most  like  this  but  it  must  be  remembered, 
that  that  was  declared  by  great  authority  to  be   a  disgrace  to  the 

country." 
[  *259  ]         *Lawrence  J.  observed,  "  It  has  been  said,  that  the 

publication  of  the  proceedings  in  the  courts  of  justice, 
when  reflecting  on  the  character  of  an  individual,  is  a  libel  ;  to  sup- 
port which  position,  the  case  of  Waterfield  v.  the  Bkhop  of  Chi- 
chester has  been  cited  (^d}  ;  but,  on  examining  that  case,  it  appears 
that  the  charge  there  was,  that  the  plaintiff  had  not  published  a 
true  account.  The  proceedings  of  courts  of  justice  are  daily  pub- 
lished, some  of  which  highly  reflect  on  individuals,  but  I  do  not 
know  that  an  information  was  ever  grjinted  against  the  publisher  of 
them.  Many  of  these  proceedings  contain  no  point  of  law,  and 
are  not  published  under  the  authority  or  the  sanction  of  the  courts, 
but  they  are  printed  for  the  public.  Not  many  years  ago,  an  ac- 
tion was  brought  in  the  Court  of  Common  Pleas  by  Mr.  Curry  (e), 
against  Walter,  the  proprietor  of  the  Times,  for  publishing  a  libel 
in  the  paper  of  "  The  Times  ;"  which  supposed  libel  consisted  in 
merely  stating  a  speech  made  by  a  counsel  in  this  court,  on  a  motion 
for  leave  to  file  a  criminal  information  against  Mr.  Curry.  L.  C. 
J.  Eyre,  who  tried  the  cause,  ruled  that  this  was  not  a  libel,  nor 
the  subject  of  an  action,  it  being  a  true  account  of  what  had  pas- 
sed in  this  court ;  and  in  this  opinion  the  Court  of  Common  Pleas 

afterwards^  on  a  motion  for  a  neiv  trial,  all  concurred, 
[  *260  ]     though  some  of  the  *judges  doubted  whether  or  not  the 

defendant  could  avail  himself  of  that  defence  on  the 

(rf)  2  Mod.  118.  (c)  1  B.  &  P.  525. 


JUDICIAL  REPORTS.  260 

pmeral  issue :  though  the  publication  of  such  proceedings  may  be 
to  the  disadvantage  of  the  individual,  the  having  these  proceedings 
made  public  more  than  counterbalances  the  inconveniences  to  the 
private  persons,  whose  conduct  may  be  the  subject  of  such  proceed- 
ings. The  same  reasons,  also,  apply  to  the  proceedings  in  parlia- 
ment ;  it  is  of  advantage  to  the  public  and  even  to  the  legislature 
besides,  that  true  accounts  of  their  proceedings  should  be  generally 
circulated,  and  they  would  be  deprived  of  that  advantage  if  no 
person  could  publish  their  proceedings  without  being  punished  as 
a  libeller." 

"  Though,  therefore,  the  defendant  was  not  authorized  by  the 
House  of  Commons,  to  publish  the  report  in  question,  yet  as  he 
only  published  a  true  copy  of  it,  I  am  of  opinion  that  the  rule 
ought  to  be  discharged." 

This  case  calls  for  several  observations.  In  the  first  place  the 
only  question  before  the  court  was,  whether  under  the  circumstan- 
ces they  would  permit  a  criminal  information  to  be  filed,  a  matter 
which  is  usually  regarded  as  discretionary.  In  the  next  place  it 
is  to  be  remarked  that,  although,  the  learned  judges  gave  reasons 
for  refusing  the  rule,  which  if  well  founded  would  go  to  the  general 
extent  of  sanctioning  all  true  reports  of  parliamentary 
and  judicial  proceedings ;  yet  that,  according  *to  several  [  *261  ] 
late  decisions,  the  legal  privilege  of  publishing  such  pro- 
ceedings  is  subject  to  very  considerable  limitations.  And,  that  the 
authority  of  this  case  to  so  great  an  extent  has  been  much  ques- 
tioned (/). 

Notwithstanding  the  analogy  assumed  to  exist  between  the  pub- 
lication of  parliamentary  proceedings  and  of  judicial  reports,  there 
seems  to  be  a  wide  and  manifest  distinction  between  them.  With 
respect  to  many  parliamentary  proceedings,  so  far  is  it  from  being 
legally  essential  to  the  interests  of  the  public  that  they  should  be 
divulged,  that  a  party  who  publishes  them  is  in  strictness  guilty  of 
a  breach  of  privilege.     Courts  of  justice,  on  the  other  hand,  are 

if)  See  the  observations  of  Lord  Ellenborou?h,  C.  J.  and  Grose,  J.  in  Stiles 
a  Nokes,  7  East  493.  R,  v.  Fisher,  2  Camp.  563.  R.  v.  Fleet,  1  B.  &  A.  379. 
R.  V.  Cariile,  3  B.  &  A.  167.  Lewis  v.  Clement,  3  B.  &  A.  702.  Flint  i;.  Pike, 
*  B.  &  C.  473- 

Vol.  I.  44 


261  CIVIL  REMEDY— OCCASION. 

open  to  all,  the  common  law  of  the  land,  is  to  be  learned  princi- 
pally by  attention  to  the  practice  and  proceedings  of  such  courts, 
and  therefore  it  is  of  essential  importance  to  the  public  that  such 
proceedings  should,  to  a  great  extent  at  least,  be  communicated  to 

all. 

And  the  court  in  holding,  that  no  parliamentary  proceeding  can 

be  deemed  libellous,  seem  to  have  regarded  the  subject 

[  *262  ]     too  abstractedly,  and  without  *reference  to  the  time, 

occasion,  and  circumstances  attending  the  publication. 

The  question  whether  a  particular  publication  shall  be  deemed  to 
be  illegal  or  even  criminal,  may  depend  not  merely  on  the  matter 
published,  but  on  the  occasion  and  circumstances  of  the  publishing. 
It  frequently  happens,  that  the  publication  of  that  -which  is  injuri- 
ous is  not  justifiable,  although  the  original  publication  was  privileged 
and  sanctioned  by  the  particular  occasion  and  circumstances  (</). 
Thus,  in  Lord  Abingdon's  case,  it  was  held  that  a  peer  who  pub- 
lishes libellous  matter  in  the  pubhc  prints,  as  having  constituted  part 
of  his  speech  in  parliament,  is  as  open  to  an  action  or  prosecution 

as  any  private  individual  (A). 
[  *263  ]  And  in  the  case  of  the  King  v.  Creevy  (i),  it  *wa3 
held,  that  a  member  of  the  House  of  Commons  was 
liable  to  be  convicted  on  an  indictment  for  a  libel,  in  publishing  in 
a  newspaper  the  report  of  a  speech,  delivered  by  him  in  the  house, 
•which  contained  libellous  matter  upon  an  individual. 

On  principles  of  public   convenience  the  ordinary  rule  is,  that  no 

(ff)  See  Lake  V.  King,  1  Saund.  131.  supra.  There  it  was  held  that  the 
printing  a  petition  to  the  House  of  Commons,  for  tlie  use  of  the  members  of 
that  House,  was  justifiable,  because  that  was  according  to  the  ordinary  course 
of  proceeding,  but  that  any  other  publication  not  authorized  by  parliamentary 
practice  would  have  been  illegal.  So  in  the  case  of  Flint  v.  Pike,  4  B.  &  C. 
473  it  was  held  that  it  was  not  justifiable  to  publish  the  speech  of  a  counsel  re- 
flecting on  the  character  of  an  individual,  although  no  action  was  maintainable 
against  the  counsel.  {h)  R.  v.  Lord  Abingdon,  1  Esp.  C.  226. 

(i)  1  M.  &  S.  273.  Le  Blanc,  J.  at  the  trial,  in  summing  up  to  the  jury,  in- 
formed them  that  they  were  to  consider,  whether  the  publication  tended  to  de- 
fame the  prosecutor  ;  that  he  was  of  opinion,  that  it  did,  but  left  the  question  to 
them.    He   further  stated  that  where  the  publication  is  defamatory,  the  law 


JUDICIAL  REPORTS.  263 

action  can  be  maintained  in  respect  of  fair  and  impartial  reports  of  a 
judicial  proceeding. 

This  rule  is  subject  to  several  natural  and  necessary  limitations 
first,  as  to  the  subject  matter  of  the  report,  and  secondly,  as  to  the 
manner  in  which  the  proceeding  is  reported. 

First  as  to  the  subject  matter.     As  the  privilege  in     [  *264:  ] 
such  cases  is  founded  upon  grounds  of  public  policy  and 
convenience,  it  ceases  where  the  nature  of  the  investigation  is  such, 
that  to  publish  it  would  obviously  be  offensive  and  injurious  to  the 
public,  as  where  it  involves  blasphemous  or  indecent  matter.     Where 
the  very  object  of  the  inquiry  was  to  protect  the  interests  of  re- 
ligion, morality,  decency,  and  good  order,  by  repressing  impious, 
blasphemous  and  obscene  or  seditious  publications,  it  would  not  only 
be  impolitic  but  weak  and   absurd  to  allow  the  same  matters  to  be 
afterwards  published  with  impunity  as  parcel  of  the  judicial  pro- 
proceeding. 

In  the  case  of  The  King  v.  Carlile  (Jc),  a  criminal  information 
was  granted  against  ^lary  Carlile,  for  a  libel,  entitled  the  mock  trial 
of  Mr.  Carlile,  but  which  contained  a  correct  account  of  what  had 
taken  place  upon  that  trial,  in  the  course  of  which  the  whole  of 
Paine's  Age  of  Reason  had  been  read.  And  the  court  held,  that 
though,  as  a  general  position,  it  was  certainly  lawful  to  publish  the 
proceedings  of  courts  of  justice,  yet  that  it  must  be  taken  with  this 
qualification,  that   what  is   contained  in  the  publication  must  be 

infers  malice,  unless  any  thing  can  be  drawn  from  the  circumstances  attending 
the  publication  to  rebut  that   inference,  and  left  them  to  say  whether  the  cir- 
cumstances did  rebut  that  inference  ;  informing  them  that  in  point  of  law,  the 
circumstances  of  its  being  a  publication  of  a  speech  delivered  by  a  member  of 
the  House  of  Commons,  did  not  rebut  it.     The  jury  found  the  defendant  guilty, 
and  the  Court  of  King's  Bench  afterwards  held  that  the  conviction   was  proper. 
Lord  Ellenborough  in  reference  to  the  observations  of  the  court,  in  the  case  of 
The  King  v.  Wright,  said  he  should  hesitate  in  pronouncing  it  to  be  a  procecd- 
triir  m  parliament.     He  also  observed  that,  when  it  became  necessary  to  discuss 
the  case  of  Curry  v.  Walter,  he  should  say  that  the  doctrine  there  laid  down 
must  be  understood  with  very  great  limitations,  and  that  he  should   never  fully 
assent  to   the   unqualified  terms  attributed  in  the  report  of  that  case  to  Eyre, 
C.J. 
{k)  3  B.  &  A.    167. 


264  CIVIL  REMEDY— OCCASION. 

neither  defamatory  of  an  individual,  tending  to  excite  disaffection, 

nor  calculated  to  offend  the  morals  of  the  people  ;  for  if  its  contents 

vere  calculated  to  produce  such  effects,  instead  of  dis- 

[  *265  ]     seminat'ng  *usefal  knowledge,  id  would  produce   great 

mischief  (/)• 
The  publication,  also,  of  es-parte  proceedings  in  criminal  cases  13 
not  onlv  privileged  by  the  law,  but  is  regarded  as  a  great  mis- 
demeanor. Where  the  evidence  is  ex-parte,  the  party  charged  has 
no  means  of  establishing  a  defence,  and  such  premature  statements 
tend  to  excite  undue  prejudices  against  the  accused,  and  to  deprive 
him  of  the  benefit  of  a  fair  and  impartial  trial ;  and  therefore,  in 
several  instances,  the  publication  of  matters  of  criminal  charge, 
contained  in  depositions  before  magistrates,  has  been  held  to  be  in- 
dictable (wz). 

(Z)  See  the  observations  of  Best,  J.,  ibid.  Bayley,  J.  observed,  that  the 
case  of  Curry  v.  Waher  must  be  taken  with  great  qualifications. 

(m)  See  the  King  v.  Fisher  and  others,  2  Camp.  503.  The  printer,  pub- 
lisher, and  cditorof  apublici  newspaper,  were  indicted  for  publishing  a  para- 
graph', purporting  to  conlam  the  examinations  before  a  magistrate,  upon  a 
charge  brought  against  the  prosecutor  by  i^.Irs.  Popplewell  ;  the  publication 
then°proceeded  to  assume  the  truth  of  the  depositions,  and  the  guilt  of  the  pro. 
spcntor,  and  to  pronounce  that  he  would  meet  with  the  reward  due  to  his 

villainy. 

It  was  contended,  on  the  authority  of  several  of  the  cases  above  cited,  that 
the  publication  was  justifiable,  as  being  a  true  account  of  the  proceedings  in  a 
court  of  justice. 

But  Lord  Ellenborough,  C.  J.  said,  "  Trials  at  law  fairly  reported,  although 
thev  may  occasionally  prove  injurious  to  individuals,  have  been  held  to  be  privi- 
leged. Let  them  continue  so  privileged  ;  the  benefit  they  produce  is  great  and  per- 
manent, and  the  evil  that  arises  from  them  is  rare  and  incidental ;  but  these  prelimi- 
nary examinations  have  no  such  privilege,  their  only  tendency  is  to  prejudge  those 
whom  the  law  still  presumes  to  be  innocent,  and  to  poison  the  sources  of  justice. 
It  is  of  infinite  importance  to  us  all,  that  whatever  has  a  tendency  to  prevent  a 
fiir  trial  shoul  I  be  guarded  against.  Every  one  of  us  may  be  questioned  in  a 
court  of  law,  and  called  upon  to  defend  his  life  and  his  character ;  we  should 
then  wish  to  meet  a  jury  of  our  counirymea  with  unliissed  minds  ;  but  for  this 
there  can  be  no  security,  if  such  publications  are  permitted." 

In  the  case  of  the  King  v.  Flet,  1  B.  and  A.  379,  a  criminal  information  was 
granted  against  the  printer  and  publisher  of  a  newspaper  for  publishing  his  min- 
utes of  the  evidence  taken  before  a  coroner's  inquest  on  a  charge  of  murden 
accompanied  by  comments  on  the  facts  as  they  occurred. 


JUDICIAL  REPORTS.  266 

*And  as  the  publishing  such  preliminary  and  ex-parte     [  *266  ] 
statements   is  an  illegal  act  in  respect  of   its  tendency 
to  'obstruct  the  due  course  of  public  justice  ;  and  as  the     [  *267  ] 
same  act  makes  a  special  prejudice  to  the   particular  in- 
dividual, not  by  its  tendency  to  deprive  him  of  the  benefit  of  a  fair 
and  impartial  trial,  but  by  the  particular  disparagement  to  his  rep- 
utation and  character  in  society,  the   publisher  is,  on  the  ordinary 
principle,  subject  to  an  action,  at  the  suit  of  the  injured  individ- 
ual (n).     In  the  late  case  of  Duncan  v.   Thwaites^o),  it  was  ex- 
pressly decided,  that  the  defendant  could  not  justify  the  publication 
of  a  cearge  imputing  to  the  plaintiff  indecent  conduct  to  a  female 
child,  on  the  ground  that  the  alleged  libel   was  no  more 
than  a  correct  account  *of  the  proceeding  which  had     [  *2G8  ] 
taken  place  at  a  public  police-office  (p). 

Bayley,  J.,  adverting  to  the  publication  of  the  minutes,  observed,  "  That  is  a 
matter  of  great  criminality  ;  for  the  inquest  before  the  coroner  leads  to  a  second 
inquiry,  in  which  the  conduct  of  the  accused  is  to  be  considered  by  persons  who 
ought  to  have  formed  no  previous  judgment  of  the  case.  It  is  a  statement  of 
evidence  taken  wholly  ex-parte,  and  where  there  is  no  opportunity  for  cross- 
examination.  A  jury  who  are  afterwards  to  sit  upon  the  trial  ought  not  to  have 
ex-parte  accounts  previously  laid  before  them.  They  ought  to  decide  solely 
upon  the  evidence  which  they  hear  on  the  trial.  It  is  therefore  highly  criminal 
to  publish  before  such  trial  an  account  of  what  has  passed  on  the  inquest  before 
the  coroner. 

Abbott,  J.  "  Every  person  who  has  attended  to  the  operations  of  his  own 
mind,  must  have  observed  how  difficult  it  is  to  overcome  preconceived  preju- 
dices and  opinions,  and  that  more  especially  in  matters  of  sentiment  or  passion. 
It  is,  therefore,  most  mischievous  to  the  temperate  administration  of  justice, 
that  a  person,  either  during  or  before  a  judicial  examination,  should  publish  a 
statement  of  facts  which  are  made  the  subject  of  a  subsequent  trial  ;  and  it  is 
still  more  mischievous  when  that  statement  is  accompanied  with  comments.  It 
is  impossible  to  say  that  much  which  exists  in  this  case  is  not  calculated  to  cre- 
ate a  prejudice  in  the  public  mind." 

(n)  Thus,  though  a  nuisance  to  a  public  highvi-ay  be  in  itself  a  public  of- 
fence, and  indictal)le  as  such,  and  is  not,  in  the  absence  of  damage  to  a  parliculaj 
individual,  the  subject  of  an  action,  yet  if  by  reason  of  such  ])ublic  offence  any 
damage  accrues  to  any  individual  in  particular,  he  may  maintain  an  action. 

(0)  3  B.  &  C.  556. 

(p)  Abbot,  L.  C.  J.,  in  delivering  the  judgment  of  the  court,  upon  this  point 
said,  "  I  take  it  to  be  a  general  rule,  that  a  party  who  sustains  a  special  and 
particular  injury  by  an  act  which  is  unlawful  on  the  ground  of  public  injury, 


268  CIVIL  REMEDY— OCCASION. 

And  although  the  objections  to  the  publication  of  ex-parte  state- 
ments do  not  apply  so  forcibly  to  civil  as  they  do  to  criminal  pro- 
ceedings,  yet  it  seems  that  the  publication  of  ex-parte  proceedings, 
even  of  a  civil  nature,  when  they  are  injurious  to  the  characters 
of  individuals,  cannot  be  justified.  For  the  communication  of  such 
ex-parte  proceedings,  may  frequently  be  attended  with 
[  *269  ]  great  hardship  to  the  individual,  and  can  seldom,  'pre- 
vious to  the  final  decision,  be  of  importance  to  the  pub- 
lic as  containing  any  judicial  information  (5). 

In  the  case  of  Duncan  v.  Tkvaites,  although  the  Lord  Chief 
Justice  pointed  out  some  distinctions  between  that  case  and  the 
previous  case  of  CurvT/  v.  Walter,  the  proceeding  which  had  been 
published  in  the  former,  being  one  which  was  merely  preliminary  in 
its  nature  and  which  might  be  lawfully  conducted  in  private,  if  the 
magistrates  engaged  in  it  thought  fit,  whilst  the  latter  proceeding 
was  before  a  court  instituted  for  final  determination  as  well  as  pre- 
liminary inquiry,  and  whose  doors  are  open  to  all  who  can  bo  accom- 
modated, and  the  proceeding  itself  had  been  actually  terminated  by 
refusing  the  application,  yet  his  lordship  desired  that  notwithstand- 
ing those  distinctions  between  the  case  then  before  the  court,  and 
that  of  Currt/  v.  Wilter,  it  was  not  to  be  inferred  that  the  Bench 
was  of  opinion  that  the  publication  of  cx-parte  proceedings,  even 
in  that  court,  was  a  matter  allowable  by  law. 

may  maintain  an  action  for  his  own  special  injury  ;  and  if  publications  like  the 
present  impede  the  due  administration  of  justice  towards  persons  accused  of 
offences,  it  is  impossible  to  say  tliat  the  individual,  whose  trial  may  be  affected 
by  them,  does  not  sustain  a  special  and  peculiar  injury,  even  in  that  view  ;  and 
he  certainly  sustains  an  injury  to  his  character  of  the  same  nature  as  the  injury 
to  any  other  person  by  any  other  species  of  defamation." 

His  Lordship  further  observed,  in  the  course  of  pronouncing  his  judgment, 
"  The  publication  in  question  impeaches  the  plaintiff's  character  ;  a  publication 
impeaching  private  character  is  actionable,  unless  the  occasion  of  publishing 
makes  the  publication  excusable  ;  and  where  the  publication  is  a  violation  of 
the  criminal  jurisprudence  of  the  country,  and  there  is  nothing  to  call  for  it,  the 
publication  is  not  exusable. 

(g)  In  a  late  case,  the  Lord  Chancellor  (Eldon)  observed,  that  he  recollected 
the  lime  when  it  would  have  been  matter  of  surprise  to  every  lawyer  in  West- 
minister Hall,  to  learn  that  the  publication  of  ex-parte  proceedings  was  legal. 


JUDICIAL  REPORTS.  269 

Next  as  to  the  manner  in  which  a  judicial  proceeding  is  reported. 
As  Jthe  privilege  of  publishing  judicial  proceedings  with 
impunity,  notwithstanding  *the  inconvenience  and  mis-  [  *270  ] 
chief  which  such  publications  may  occasion  to  individu- 
als, is  founded  upon  grounds  of  public  policy  and  convenience ;  the 
condition  necessarily  annexed  to  immunity  is,  that  the  proceeding 
be  faiily,  impartially,  and  correctly  reported. 

It  is,  therefore,  plain  that  this  principle  will  not  justify  any  mis- 
representation of  the  facts ;  to  mis-state  any  part  of  the  proceeding 
would  be  not  to  benefit  and  instruct,  but  to  mislead  the  public,  and 
might  create  most  intolerable  mischief  to  individuals  inasmuch  as  it 
would  annex  to  the  calumny  a  degree  of  authenticity  from  its  sup- 
posed connection  with  a  solemn  deliberate  judicial  investigation. 
It  is  not,  however  necessary  to  resort  to  the  latter  consideration  for 
the  purpose  of  divesting  such  a  publication  of  legel  defence  ;  it  is 
sufficient  that  the  misrepresentation  deprives  the  defendant  of  the 
excuse  which  might  have  been  available,  had  he  reported  the  facts 
correctly. 

In  the  case  oi  Stiles  v.  iVb^es(r),  it  was  observed  by  Lord 
Ellenborough,  C.  J.  and  Grose,  J.  that  it  must  not  be  taken  for 
granted  that  the  publication  of  every  matter  passes  in  a  court  of 
justice,  however  truly  represented,  is,  under  all  circum- 
stances, and  with  whatever  *motive  published,  justifiable,  [  *271  ] 
but  that  doctrine  must  be  taken  with  some  grains  of  al- 
lowance. "It  often  happens,"  said  Lord  Ellenborough,  "that 
circumstances,  necessary  for  the  sake  of  public  justice  to  be  dis- 
closed by  a  witness  in  a  judicial  inquiry,  are  very  distressing  to  the 
feelings  of  individuals  on  whom  they  reflect.  The  protection  af- 
forded by  law  to  such  publications  does  not,  however,  extend  beyond 
a  plain  unvarnished  statement  of  the  proceeding,  and  will  not  war- 
rant the  least  misrepresentation  of  facts,  or  even  any  high  colouring 
of  the  circumstances  stated.'*^ 

Lofield  (s)  having  recovered  in  an  action  against  Bankcroft,  for 
maliciously  charging  him  with  felony,  and  for  procuring  him  to  bo 

(r)  7  East.  493. 

(s)  Easter  Term,  5  G.  2.  1732.  2  Barnard.  K.  B.  128.     The  King  «.  Lofield. 


271  CIVIL  REMEDY— OCCASION. 

arrested  on  suspicion  of  the  same,  afterwards  published  that  Bank- 
croft  had  conspired  to  charge  him  vith  this  felony,  and  that,  in 
vindication  of  his  character,  he  had  brought  an  action  against  him 
for  so  doing,  and  had  recovered  £1100  damages  against  him."  On 
a  motion  for  a  criminal  information,  the  court  said,  that  the  present 
advertisement  had  falsely  represented  the  fact,  for  Lofield  did  net 

bring  his  action  for  a  conspiracy,  but  for  Bankcroft'3 
[  *272  ]     maliciously  charging  him  with  felony,  and  *a  conspiracy 

requires  an  infamous  judgment.     The  rule  was  made  ab* 

solute. 

The  same  principle  applies  not  only  to  misrepresentations  of  facts, 
but  also  to  all  partial  and  garbled  statements,  prejudicial  to  the  cha- 
racter of  the  individual  to  whom  they  relate  ;  such  reports  are,  at 
the  least,  useless  to  the  public,  and  to  individuals  oftentimes  most 
injurious. 

It  is  obvious,  that,  if  it  were  allowable  to  pick  cut  and  select 
particular  parts  of  a  judicial  proceeding,  the  privilege  would  be  lia- 
ble to  the  most  grievous  abuse,  and  that  under  the  colour  and  pre- 
tence of  communicating  to  the  public,  useful  and  necessary  informa- 
tion, which  is  the  legitimate  ground  for  investing  such  publications 
with  peculiar  and  extraordinary  means  of  protection,  the  reputation 
of  individuals  would  be  subjected  to  most  unjust  and  unmerited 
calumny.  And,  therefore,  a  reporter  is  not  privileged  in  publishing 
a  speech  of  a  counsel  containing  reflections  on  the  character  of  an 
individual  annexed  to  a  short  summary  of  the  trial  without  stating 
the  evidence  (0- 

So  it  has  been  held  that  the  publishing  the  speech  of  a 
[  *273  ]     counsel  in  a  judicial  proceeding,  coupled  *with  a  general 
assertion,  that  his  statement  was  proved  by  a  witness  cal- 
led upon  that  trial,  cannot  be  justified  (m). 

The  evidence  ought  to  be  stated  in  order  that  those  who  read  the 

(t)  Flint  V,  Pike,  4  B.  &.  C.  473.  vide  infra  under  the  title  pica.  And  quaere 
whether  he  would  be  justified  in  publishing  a  speech  reflecting  on  the  character 
of  an  individual,  even  although  the  evidence  were  also  published,  ibid. 

(u)  Lewis  V.  Walter,  4  B.  &  A.  605, 


JUDICIAL  REPORTS.  273 

report  may  judge  for  themselves,  and  it  is  not  sufficient  to  substitute 
the  mere  inference  of  the  reporter  (n:). 

And  though  the  report  were  to  state  the  evidence,  it  seems  to  be 
doubtful  whether  the  publication  of  the  speech  of  a  counsel  which 
reflected  on  the  reputation  of  another  would  be  justifiable,  unless,  at 
least,  it  appeared  that  the  observations  were  warranted  and  that  the 
party  deserved  them  (jy')  or  that  they  were  so  connected  with  the 
case,  that  the  detail  was  necessary  for  the  information  of  the  pub- 
lic (z)  \a  a\. 

And  though  a  counsel  might  not  be  responsible  in  a  common  ac- 
tion for  slander,  although  he  made  use  of  observations  detrimental 
to  individuals,  yet  it  seems  that  a  party  who  repeated  the  slander- 
ous matter  to  all  the  world,  would  be  liable  to  such  an 
•action  ;  for  the  repeating  such  slander,  is  not  done  in  [  *274  ] 
the  course  of  the  administration  of  justice,  and  therefore 
is  not  privileged  (a).  And,  although  the  uttering  of  slanderous 
matter  may  be  justified  by  the  occasion  on  which  it  is  spoken,  the 
subsequent  publication  of  it  may  be  criminal. 

In  the  case  of  Duncan  v.  Thwaites,  (5),  already  cited,  it  was 
held  that  a  statement,  purporting  to  be  an  account  of  a  charge  made 
at  a  police  office  against  the  plaintiff  for  an  attempt  to  violate  the 
person  of  Ann  Chandler,  was  not  justified  by  a  plea  which  set  forth 
the  depositions,  from  one  of  which  it  appeared  that  the  report  wholly 

{x)  Per  Abbott,  L.  C.  J.  4  B,  &  A.  612.  "  If  a  party  is  to  be  allowed  to 
publish  what  passes  in  a  court  of  justice,  he  must  publish  the  whole  case,  and 
not  merely  state  the  conclusion  which  he  himself  draws  from  the  evidence." 

{y)  See  the  observations  of  Holroyd,  J.  4  B.  &  C.  477.  ibid  482. 

(z)  See  the  quaere  of  Bayley,  J.  4  B.  &  C.  476. 

[a  a]  In  Saunders  v.  Mills,  6  Bingh.  213,  it  was  held,  that  a  statement  in  a 
newspaper  of  the  speech  of  a  counsel,  in  a  cause  reflecting  on  the  character  of 
the  plaintiff,  who  was  the  defendant  in  that  cause,  without  stating  any  evidence, 
could  not  be  justified,  though  the  defendant  proved  that  he  had  copied  the  para- 
graph from  another  paper. 

(a)  See  the  observations  of  Holroyd,  J.  in  the  case  of  Flint  v.  Pike,  4  B.  & 
C.  481-  See  also  Lake  ».  King,  1  Saund.  120.  R.  v.  Creevy,  1  M.  &  S.  273. 
R,  V.  Lord  Abingdon,  1  Esp.  C  226. 

(b)  3  B.  &  C.  226. 

Vol.  I.  45 


274  CIVIL  REMEDY— OCCASION. 

omitted  the  deposltioa  of  Desormeaux,  a  surgeon,  in  which  he  had 
deposed,  that  to  a  question  proposed  bj  him  to  Ann  Chandler,  to  a 
material  fact,  she  had  repeatedly  answered  in  the  negative,  although 
she  had  before  the  magistrate  sworn  in  the  affirmative. 

Neither  does  the  privilege  extend  to  any  defamatory  observations 
or  comments,  made  in  addition  to  what  passed  in  court.  Thus, 
where  the  defendant  had  published  a  statement,  which  he  attempted 
by  his  plea  to  justify,  as  being  a  *fair  and  impartial  ac- 
[  *275  ]  count  of  a  proceeding  in  a  court  for  the  discharge  of  in- 
solvents, but  had  prefaced  that  statement  by  the  words 
*'  shameful  conduct  of  an  attorney,"  it  was  held  that  a  justification 
could  not  be  supported  (i). 

(b)  Abbott,  L.  C.  J.  in  pronouncing  the  judgment  of  the  court  observed,  the 
question  whether  a  person  may  publish  a  correct  narrative  of  proceedings,  in  a 
court  of  justice,  which  contains  matter  defamatory  of  a  third  person  not  a  party 
to  the  suit,  it  is  not  necessary  to  decide,  because  the  narrator  in  this  case  has 
not  confined  himself  to  what  actually  passed  in  court,  but  has  prefaced  the  state- 
ment with  the  words  "  shameful  conduct  of  an  attorney,"  he  has  therefore 
taken  upon  himself  to  make  that  allegation  concerning  the  plaintiff;  we  think, 
therefore,  the  pleas  are  bad,  &c.  The  judgment  was  afterwards  affirmed  in  the 
Exchequer  Chamber,  3  B.  &  B-  297. 

For  further  observations  on  this  suject,  see  the  Preliminary  Discourse. 


CHAPTER  XIL 


Probable  Cause. 


*In  the  next  place,  the  occasion  of  publishing  may  supply  an  abso- 
lute defence,  independently  of  the  actual  intention  of  the 
publisher  but  dependant  on  the  existence  o^ probable  or  rea-     [  *276  ] 
eonable  cause  for  the  act. 

It  has  been  seen  (a)  that  the  ordinary  action  for  slander  is  not 
maintainable  where  the  publication  has  been  made  in  a  judicial  pro- 
ceeding, according  to  the  due  course  of  law.  But  a  special  action 
on  the  case  may  be  supported  in  respect  of  a  malicious  and  unfound- 
ed prosecution.  So,  also,  it  seems,  may  such  an  action  be  support- 
ed against  an  advocate  who  has  abused  his  professional  situation,  for 
improper  and  malicious  purposes.  So,  also,  is  such  an  action  main- 
tainable in  respect  of  a  malicious  disparagement  of  a  man's  title  to 
an  estate  though  it  be  made  by  one  who  himself  claims  to  be  enti- 
tled. But  in  all  these  cases,  and  perhaps  in  some  others, 
*it  seems  that  the  existence  of  probable  or  reasonable  [  *277  ] 
cause  for  the  charge  or  claim  would  constitute  a  legal 
bar  to  the  action  ;  or,  as  it  would  perhaps  be  more  correct  to  state 
it,  the  want  of  such  probable  cause  would  be  essential  to  the  ac- 
tion. 

It  is  obvious  that  the  allowing  probable  cause  to  operate  as  a  de- 
fence must  depend  on  principles  of  policy  and  convenience. 

On  general  principles  of  expediency,  the  absence  of  probable  cause 

(a)  Supra,  Chap.  10- 


277  CIVIL  REMEDY— OCCASION. 

is  essential  to  the  action,  and  the  existence  of  probable  cause  is  a 
complete  bar  independently  of  the  actual  intention  of  the  defendant 
in  those  cases  where  it  would  be  impolitic  on  the  one  hand  to  allow  the 
mere  occasion  to  operate  as  an  absolute  bar  ;  but  where,  on  the  other 
it  would  be  inconvenient  to  make  the  liability  depend  on  the  mere 
motive  of  the  publisher,  and  where  public  convenience  requires  that 
the  act  should  be  protected,  provided  reasonable  ground  for  doing 
it  really  existed. 

Thus,  in  the  case  of  a  malicious  charge  in  the  ordinary  course  of 
justice,  it  would  be  attended  with  great  mischief  and  vexation  if  the 
prosecutor  were  to  be  absolutely  exempted  from  responsibility,  al- 
though he  had  wantonly  perverted  the  course  of  law  to  malicious 
and  vexatious  purposes  ;  it  might,  on  the  other  hand,  be  productive 
of  evil  to  make  a  prosecutor  amenable  in  damages  when 
[  *278  ]  he  failed  to  establish  the  charge  in  all  cases  where  *he  had 
acted  maliciously  ;  for  in  numerous  instances  it  might  be 
highly  expedient  that  judicial  investigation  should  take  place  though 
the  prosecutor  be  not  actuated  by  the  love  of  justice,  but  by  the 
basest  motives  of  personal  malice.  The  public  may  in  numerous  in- 
stances, be  benefited  by  the  promotion  of  inquiry,  notwithstanding 
the  immorality  of  the  prosecutor.  And,  therefore,  where  a  reason- 
able and  probable  cause  for  making  the  charge  really  exists  and  conse- 
quently where  the  public  has  an  interest  in  promoting  inquiry,  be 
the  motives  of  the  prosecutor  ever  so  culpable  in  a  moral  point  of 
view,  it  becomes  a  matter  of  legal  policy  and  discretion  to  exempt 
him  from  civil  liability :  and  therefore,  in  all  actions  for  malicious 
prosecutions,  the  want  of  probable  cause  is  not  only  invariably  essen- 
tial to  the  action,  but  proof  of  the  negative  is  incumbent  on  the 
plaintiflf  (c). 

The  requiring  such  proof  from  the  plaintifif  is  not  only  a  rule  of 
policy  and  convenience,  but  of  strict  natural  justice  when  it  is  consid- 
ered how  often  it  happens  that  the  facts  on  which  a  criminal  prosecu- 
tion is  properly  founded,  are  confined  to  the  knowledge  of  the  prosecu- 

(c)  1  T.  R.  520.  1  Salk.  14,  15,  21.  5  Mod.  394,  5.  1  Vent.  86.  Carth.  415. 
See  the  cases,  Staikie  on  Evidence,  tit.  MaUcious  Prosecution. 


PROBABLE  CAUSE.  279 

tor  alone,  and  that  if  this  proof  were  not  required  from 

the  *plaintiff  how  often  a  bona  fide  prosecutor  would   be     [  *279  ] 

exposed   to  an  action  against  which  he  might  have  no 

defence,  from  his  inability  to  prove  the  probable  cause  which  really 

existed  ((?). 

What  shall  amount  to  probable  or  reasonable  cause,  in  this  as  well 
as  other  cases,  may  be  either  a  question  of  law,  arising  simply  on 
the  mere  facts,  or  it  may  depend  on  the  conclusion  of  the  jury  from 
the  facts.  It  is  a  question  of  law  arising  simply  upon  the  facts,  and 
independently  of  any  general  conclusion  made  by  a  jury  in  all  cases 
where,  from  the  mere  facts  themselves,  the  court  can,  by  the  aid  of 
any  rule  or  principle  of  law,  draw  or  exclude  the  inference  of  prob- 
able cause  from  such  facts  (e).  [a  a}. 

(d)  Infra  tit.  evidence,  and  see  Starkie  on  Evidence,  Pt.  iv.,  911. 

(e)  Thus  in  the  case  of  Golding  v.  Crowle,  M.  25   G.  3.   B.  N.  P.  14,  it  is 
said,  "  if  the  plaintiff  do  prove  nualice,   yet  if  the  defendant  show  a  probable 
cause,  he   shall  have   a  verdict,  and  the  judge,  not   the  jury,  is  to  determine 
whether  he   had  a  probable   cause  ;  and   therefore,  where  the  plaintiff  having 
brought  an  action  against  the  defendant  for  a  malicious  prosecution  for  perjury- 
obtained  a  verdict,  upon  a  motion  for  a  new  trial,  the  court  set  it  aside,  (it  ap- 
pearing,  on   the   report  of  the  judge  that  there  was  probable  cause)  not  as  a 
verdict  against  evidence,  but  as  a  verdict  against  law  ;  (note  a  quaere  is  added 
in  the   margin).     So  in  the  case  of  Candell  v.  Loudon,  cor.  Buller,    J.  Gaildh. 
after   Tiin.  1785,  cited  in  Johnstone  v.  Sutton,  1  T.  R.  520.   Buller,  J.  stated  to 
the  jury  that  there  were  two  questions  to  be  determined  :  1st.  whether  the  facts 
in  evidence  were  true ;  2dly,  whether,  if  true,  they  showed  a  want  of  reasona- 
ble or  probable  cause  ;  and  the  learned  judge  added,  that  what  is  reasonable  or 
probable  cause  is  matter   of  law,  and   he  then  gave  his  opinion  on  the  case. 
And   in  the   case   of  Johnstone  w.    Sutton,  1  T.  R.  493,   Lords  Mansfield   and 
Loughborough,  in  stating   their  opinions  for  reversing  the  judgment,  observe 
that  the  question  of  probable  cause  is   a  mixed   question   of  law   and   fact. 
Wliether  the  circumstances  alleged  to  show  it  probable  or  not  probable  are  true 
and   existed  is   a  matter   of  fact;  whether,  supposing  them  to   be  true,  they 
amount  to  a  probable  cause,  is  a  question  of  law,  and  upon  this  distinction  pro- 
ceeded the  case  of  Reynolds  v.  Kennedy,  1  Wils.  232.     In  that  case  an  action 
for  a  malicious  prosecution  was  brought  against  the  defendant  for  maliciously 
proceeding   by  information  before  certain  sub-commissioners  of  the  excise  ia 
Ireland  in  respect  of  certain  goods  of  the  plaintiff's,  which  had  been  condemned 
by  the  sub-commissioner,  but  which  condemnation  had  been  reversed  on  appeal 


280  CIVIL  REMEDY— OCCASION. 

[  *280  ]         "Where,  on  the  other  hand,  the  distinction  between 
probable  and  improbable,  reasonable  or  unreasonable,  is 

to  the  commissioners.  After  a  verdict  for  the  plaintiff,  judgment  was  arrested, 
and  that  judgment  was  affirmed  in  the  K.  B.,  upon  error  brought,  the  court 
being  of  opinion  that  the  declaration  which  showed  a  condemnation  in  the  first 
instance  by  the  sub-commissioners  was  felo  de  se  ;  for  their  judgment  justified 
the  proceeding,  and  the  reversal  of  their  judgment,  on  appeal,  did  not  afford 
any  inference  of  malice  on  the  part  of  the  defendant  below. 

So  in  the  case  of  Isaacs  v.  Howard,  2  Starkie's  C.  167,  Ld.  Ellenborough 
delivered  his  opinion  to  the  jury,  that  in  point  of  law  a  constable  was  not  justi- 
fied in  taking  a  party  into  custody,  without  warrant,  on  a  charge  of  having  re- 
ceived stolen  goods,  on  the  mere  information  of  a  boy  who  was  one  of  the  prin- 
cipal felons.  See  also  as  to  other  cases,  where  the  conclusion  as  to  what  is 
reasonable  is  considered  as  a  question  of  law.  Co.  Litt.  56  b.  4  Co.  27  b.  Ho- 
bartw.  Hammond,  Cro.  J.  26-1.  Stodder  v.  Harvey,  Cro.  Eliz.  583.  Bell  u. 
Wordell,  Willes,  202.  Ld.  Mansfield,  241.  Hill  v.  Yates,  2  Moore  80. 
Starkie  on  Evidence,  p.  iii.  416.  So  again,  there  is  no  probable  cause  in  law 
where  the  party  does  not  act  upon  those  facts  which  might  of  themselves  have 
supplied  probable  cause,  but  acts  against  his  better  knowledge  that  there  was, 
in  truth,  no  probable  cause  ;  for  as  to  one  who  is  better  informed  there  is  no 
probable  cause.  See  Haw.  P.  C  b.  2.  c.  12.  s.  15.  Sir  Anthony  Ashley's 
case,  12  Co.  72.  So,  though  a  party  would,  in  point  of  law,  be  justified  ia 
arresting  another,  if  he  acted  bona  fide  on  the  opinion  of  a  professional  adviser, 
yet  if  he  acted  not  upon  that  opinion,  but  from  malicious  motives,  believing  that 
he  must  fail,  there  would,  in  point  of  law,  be  a  want  of  probable  cause-  Ra- 
venga  v.  Macintosh,  2  B.  &i,T!T^^,^ 

But,  on  the  other  hand,  although  the  authorities  most  abundantly  prove  that 
probable  or  reasonable  cause  may  be  matter  of  mere  judicial  inference,  from  the 
mere  facts,  independently  of  the  jury,  it  by  no  means  follows  that  such  must 
always  be  the  case  :  on  the  contrary,  it  seems  to  be  manifest  that  whenever  the 
facts  are  numerous  and  complicated,  and  do  not  fall  within  any  particular  rule  or 
principle  of  law,  then  the  jury  must  draw  the  conclusion  in  fact,  and  that  the 
conclusion  in  law  will  follow  such  conclusion  in  fact.  Thus,  in  the  case  of 
Reynolds  v.  Kennedy,  cited  m  the  opinion  given  by  Lords  Mansfield  and  Lough- 
borough in  the  case  of  Johnstone  v.  Sutton,  the  court  held,  that  the  very  fact 
that  the  sub-commissioners  had,  in  the  first  instance,  condemned  the  goods  were 
sufiicient  to  establish  the  existence  of  probable  cause  as  a  question  of  law,  yet 
in  this  case,  as  well  as  in  the  others,  where  the  court  has  made  the  legal  infer- 
ence, some  prominent  facts  have  existed  on  which  the  court  could  found  a  gen- 
eral rule,  which  was  to  govern  not  only  the  individual  case,  but  all  which 
should  be  within  its  scope.  But,  in  many  instances,  the  facts  are  so  numerous 
and  so  complicated  as  to  render  it  difficult  to  apply  any  general  rule,  and  where 


PROBABLE  CAUSE.  281 

not  defined  by  any  rule  or  principle  *of  law,  the  conclu-     [  *281  ] 
siou  must,  it  seems,  be  drawn  by  the  jury  (/). 

it  might  be  highly  inconvenient  to  do  so  on  account  of  multiplying  legal  rules 
and  distinctions  to  a  very  great  extent.  A  prosecution  may  be  instituted  on 
such  unsatisfactory  or  satisfactory  grounds,  in  point  of  evidence,  that  the  court 
might  find  no  difficulty  in  deciding  as  a  matter  of  law  on  the  absence  in  the  one 
case,  or  the  existence  in  the  other  of  probable  cause.  Thus,  in  the  case  of 
Isaacs  V.  Brand,  2  Slarkie's  C.  167,  Lord  Ellenborough  held  that  a  mere  de- 
claration by  a  principal  felon  that  another  person  had  received  the  goods,  did 
not  afford  a  probable  or  reasonable  ground  for  arresting  the  latter ;  on  the  other 
hand,  the  fact  of  finding  stolen  goods  recently  after  the  felony  in  the  possession 
of  another  would  certainly,  in  point  of  law,  show  probable  cause  for  an  arrest; 
but  between  such  extreme  cases,  there  may  be  an  infinite  number  of  inter- 
mediate ones  where  the  law  can  lay  down  no  precise  rules  as  to  the  existence 
of  reasonable  cause,  and  consequently  where  the  inference  must  be  drawn  by 
the  jury.  Many  instances  occur  m  practice,  in  actions  of  this  nature  as  well  as 
others,  where  the  question  of  what  is  probable  or  reasonable  is  properly  left  to 
the  jury.  Thus,  in  the  case  of  Isaacs  v.  Brand,  2  Starkie's  C  167,  Lord  Ellen- 
borough  left  the  question  of  probable  cause,  under  the  circumstances,  to  the 
jury,  and  his  lordship  pursued  the  same  course  in  Brookes  v.  Warwick,  2 
Starkie's  C.  389.  And  in  general  it  seems  that  where  no  acknowledged  rule 
or  principle  of  law  defines  the  limits  between  probable  and  improbable,  reason- 
able and  unreasonable,  the  question  is  one  for  the  jury,  under  all  the  circumstan- 
ces of  the  case.  See  Lord  Kenyon's  observations  in  Hilton  v.  Shepherd,  6 
East.  14  n.  Fry  v.  Hill,  7  Taunt.  397.  Starkie  on  Evidence,  tit.  Law  and 
Fact,  part  iii.  p.  418. 

[a  a]  And  see  Davis  r.  Hardy,  6  Barn,  and  Cres.  225.  Davis  hired  a  chaise 
in  the  name  of  Hardy  and  received  from  the  assignee  of  Martin,  a  bankrupt,  the 
amount  of  the  chaise  hire  ;  he  did  not  pay  it  to  the  innkeeper  or  to  Hardy,  nor 
did  he  mention  to  the  latter  that  he  had  received  the  amount.  Upon  a  charge 
being  preferred  against  Davis,  he  was  examined  before  one  of  the  magistrates, 
and  admitted  most  of  the  facts.  On  this  evidence,  the  learned  judge  at  the  trial 
was  of  opinion,  that  there  was  sufficient  evidence  of  the  want  of  probable 
cause  for  indicting  Davis  for  embezzlement.  Staines,  the  proprietor  of  the 
chaise,  was  afterwards  called  as  a  witness  for  the  defendant,  and  it  appeared  on 
his  evidence  that  he  having  applied  to  Davis  for  payment,  Davis  requested  him 
-  not  to  tell  Hardy,  for  it  would  do  him  a  great  injury.  The  learned  judge  being 
of  opinion  that  the  subsequent  facts  coupled  with  the  former,  shewed  reasonable 
and  probable  cause,  nonsuited  the  plaintiff,  though  pressed  by  the  defendant's 
counsel  to  leave  it  to  the  jury  whether  they  believed  Staines's  evidence  ;  and 
the  court  of  King's  Bench  refused  to  grant  a  new  trial. 
(/)  See  note  (e)  supra,  p.  279. 


282  CIVIL  REMEDY— OCCASION. 

[  *282  ]  The  same  protection  which  is  afforded  to  a  *))arty  in  a 
judicial  proceeding  is  with  some  limitation  extended  to  a 
professional  advocate.  He  is  not  subject  to  an  action, 
[  *283  ]  provided  the  facts  'which  he  alleges  are  pertinent  to  the 
cause,  and  are  suggested  by  his  client ;  for  though  a 
counsel  may  be  expected  to  exercise  a  discretion  whether  the  parts 
which  he  states,  if  true,  be  material  to  the  issue,  yet  it  would  be 
too  much  to  expect  that  he  should  take  notice,  at  his  peril,  whether 
the  facts  themselves  be  true  or  false.  In  the  case  of  Wood  v.  Gus- 
ton  ((/)  it  is  laid  down,  that  "  if  a  counsel  speaks  scandalous  words 
against  one  in  defending  his  client's  cause,  an  action  lies  not  against 
him  for  so  doing,  for  it  is  his  duty  to  speak  for  his  client,  and  it 
shall  be  intended  to  be  spoken  according  to  his  client's  instructions. 
In  the  case  of  Brooke  v.  Sir  Henry  Montague  (Ji)  the  plaintiff 
brought  an  action  against  the  defendant  for  these  Avords  ;  "he  was 
arraigned  and  convicted  of  felony."  The  defendant  pleaded,  that 
the  plaintiff,  at  another  time,  brought  false  imprisonment 
[  *284  ]  against  J.  S.,  one  of  the  Serjeants  *of  London,  who  jus- 
tified by  warrant  from  Sir  N.  Moseley,  mayor  of  Lon- 
don, for  arresting  him,  to  find  sureties  for  the  good  behaviour,  and 
they  were  thereupon  at  issue,  and  found  against  the  plaintiff,  who 
thereupon  brought  an  attaint.  And  that  the  defendant,  being  eon- 
siliarius  et  peritus  in  lege  was  retained  to  be  counsel  with  the  petty 
jury,  and  in  evidence  at  the  trial  in  London,  spake  those  words  in 
the  declaration  ;  and  Yelverton  and  Coke,  attorney-general,  being 
of  counsel  for  the  defendant,  the  court  resolved  that  the  justification 
was  good,  for  a  counsellor  in  law  retained  hath  a  privilege  to  enforce 
any  thing  which  is  informed  unto  him  for  his  client,  and  to  give  it  in 
evidence,  it  being  j^^Ttinent  to  the  matter  in  question,  and  not  to  ex- 
amine whether  it  be  true  or  false  ;  but  it  is  at  the  peril  of  him  who 
informs  it ;  for  a  counsellor  is,  at  his  peril,  to  give  in  evidence  that 
which  his  client  informs  him,  being  pertinent  to  the  matter  in  ques- 
tion, otherwise  action  on  the  case  lies  against  him  by  his  client,  as 
Popham  said  ;  but  matter  not  pertinent  to  the  issue  or  the  matter 
in  question  he  need  not  deliver,  for  he  is  to  discern,  in  his  discretion 

ig)  Styles,  462.  (A)  Cro.  Jac.  90. 


PROBABLE  CAUSE.  284 

what  he  is  to  deliver  and  -what  not,  and  although  it  be  false  he  is 
excusable,  being  pertinent  to  the  matter  ;  but  if  he  give  in  evidence 
any  thing  not  material  to  the  issue,  which  is  scandalous,  he  ought  to 
aver  it  to  be  true,  otherwise  he  is  punishable  ;  for  it 
*shall  be  intended  as  spoken  maliciously  and  without  [  *285  ] 
cause,  which  is  a  ground  for  an  action.  So,  if  a  coun- 
sellor object  matter  against  a  witness  which  is  slanderous,  if  there 
be  cause  to  discredit  his  testimony,  and  it  be  pertinent  to  the  matter 
in  question,  it  is  justifiable  what  he  delivers  by  information,  although 
it  be  false  ;  so  here  it  is  material  evidence  to  prove  Mm  a  person  fit 
to  he  hound  to  his  good  behavior,  and  in  maintenance  of  the  first 
verdict,  therefore  his  justification  is  good. 

The  same  principle  extends  to  a  comment  made  by  a  counsel  upon 
facts  proved  in  the  cause,  or  proposed  to  be  proved  and  relevant 
to  the  matter  in  issue  (i), 

(z)  Hodgson  V.  Scarlett,    1  B.   &  A.  232.      The  words  stated  in  the  first 
count  of  the  declaration  were  these,  "  some  actions  are  founded  in  folly,  some  in 
knavery,  some  in  both  ;  some  in  the  folly  of  the  attorney,  some  in  the  knavery 
of  the  attorney,  some  in  the  folly  and  knavery  of  the  parlies  themselves  ;  Mr. 
Peter  Hodgson  was  the  attorney  of  the  parties,  drew  the  promissory  note,  and 
fraudulently  got  Bowman  to  pay  into  his  hands  £150  for  the  benefit  of  the 
plaintiff.      This  was  one  of  the  most  profligate  things  I  ever  knew  done  by  a 
professional  man.     Mr.  Hodgson  is  a  fraudulent  and  wicked  attorney."      In  the 
second  count,  the  words  were  stated  "  Mr.  Hodgson  is  a  fraudulent  and  wicked 
attorney  ;"  plea  general  issue.     At  the  trial  at  the  Lancaster  Assizes,  before 
Wood  Baron,  Kaine  opened  the  case,  and  stated  that  the  action  was  brought  for 
words  spoken  by  the  defendant,  in  an  address  to  the  jury  as  counsel,  in  a  cause, 
tried  at  the  preceeding  assizes,  and  that  they  were  not  warranted  by  the  facts  of 
the  case  ;  on  this  the  learned  judge  said,  "  I  take  it  for  granted,  from  your  open- 
ing, that  there  was  such  a  cause  tried,  and  that  there  was  a  question  in  it, 
respecting  the  drawing  of  the  promissory  note  as  mentioned,  and  that  these 
words,  if  spoken,  were  part  of  the  defendant's  speech  to  the  jury,  and  had  ref- 
erence to  that  transaction."     To  this,  both  sides  assented,  and  he  then  added, 
'•  the  observations  might  be  too  severe  ;  that  I  can  say  nothing  about,  but  as  they 
were  relative  to  the  subject  matter  of  the  cause  as  at  present  advised,  I  think  the 
action  not  maintainable.     The  learned  judge,  therefore,  being  of  opinion  that  it 
was  not  for  the  jury  to  try  whether  the  cause  or  occasion  for  speaking  the  words 
was  sufficient  to  warrant  them  though  there  was  nothing  to  leave  to  them,  even 
supposing  the  words  to  be  proved,  and  nonsuited  theplaiatiff. 

Vol.  I.  46 


286  CIVIL  REMEDY— OCCASION. 

It  seems,  however,  to  be  doubtful  whether,  even  in  the 
[  *286  ]     *case  of  an  advocate,  if  it  could  be  proved  that  he  acted 

of  express  mahce,  and  without  probable  or  reasonable 
cause,  an  action  might  not  be  maintained ;  and  the  court  in  the  case 
last  cited  gave  no  opinion  on  the  subject ;  but  it  seems  that,  at  all 

events,  the  plaintiff  could  not  even  then  recover  in  an 
[  *287  ]      ordinary  action  for  defamation,  but  *must  resort  to  a 

special  action,  alleging  express  malice  (k)  and  the  want  of 
probable  cause. 

Again  where  a  party  extra-judicially  asserts  his  title  to  the  lands 
of  another,  the  very  fact  of  his  making  a  claim  precludes  the  owner 
who  is  injured  *by  it  from  recovering  in  an  ordinary  action  for  slan- 

The  court  of  King's  Bench  afterwards  refused  to  grant  a  new  trial,  on  the 
ground  that  the  words  complained  of  were  relevant  and  pertinent  to  the  original 
cause  in  which  .they  had  been  uttered,  and  consequently,  that,  according  to  the 
principle  laid  down  in  the  case  of  Brooke  against  Sir  Henry  Montague,  they 
were  not  actionable  [1]. 

(A-)  See  the  observations  made  by  Holroyd,  J.  in  the  case  of  Fairman  v.  Ives, 
1  B.  &  A.  645.  In  the  case  of  Hodgson  v.  Scarlett,  2  B.  &  A.  the  same  learn- 
ed judge  observed,  with  a  view  to  the  due  administration  of  justice,  counsel  are 
privileged  in  what  they  say  ;  unless  the  administration  of  justice  is  to  be  fetter- 
ed, they  must  have  free  liberty  of  speech  in  making  their  observations,  which  it 
must  be  remembered  may  be  answered  by  the  opposing  counsel,  and  are  com- 
mented on  by  the  judge,  and  are  afterwards  taken  into  consideration  by  the  jury 
who  have  an  opportunity  of  judging  how  far  the  matter  uttered  by  the  counsel 
is  warranted  by  the  facts  proved  ;  therefore,  in  the  course  of  the  administration 
of  justice,  counsel  have  a  special  privilege  of  uttering  matter  even  injurious  to 
an  individual,  on  the  ground  that  such  a  privilege  tends  to  the  administration  of 
justice.  And  if  a  counsel  in  the  course  of  a  cause,  were  to  utter  observations  in- 
jurious to  individuals,  and  not  relevant  to  the  matter  in  issue,  it  seems  to  me  that 
he  would  not  therefore  be  responsible  to  the  party  injured,  in  a  common  action  for 
slander,  but  that  it  would  be  necessary  to  sue  him  in  a  special  action  on  the 
case,  in  which  it  must  be  alleged  in  the  declaration,  and  proved  at  the  trial,  that 
the  matter  was  spoken  maliciously  and  without  reasonable  and  probable  cause. 
This  may  be  illustrated  by  the  common  case  of  a  false  charge  of  felony  exhib- 
ited before  a  justice  of  the  peace  ;  there  an  action  upon  the  case,  as  for  defama- 
tion, will  not  lie,  because  the  slander  is  uttered  in  the  course  of  the  adminis- 
tration of  justice,  but  the  party  complaining  is  bound  to  allege  that  it  was  made 
without  reasonable  or  probable  cause. 

[1]  See  Hasting  v.  Lusk,  22  Wendell  410. 


PROBABLE  CAUSE.  288 

der,  independently  of  any  inquiry  as  to  thesinceri-  [  *288  ] 
ty  of  the  claimant  (Z)  ;  for  it  would  be  highly  incon- 
venient and  impolitic  to  subject  the  motive  and  intention  of  a 
claimant  generally  to  legal  inquiry.  But  on  the  other  hand,  where 
a  party  makes  such  a  claim  maliciously  and  without  any  probable 
cause,  he  is  liable  to  a  special  action  alleging  malice  and  the  want 
of  probable  cause  (m). 

So  that  if  B.  published  that  he  had  a  lease  of  Blackacre  for  one 
thousand  years,  he  would  not  be  liable  to  an  ordinary  action  for 
slander,  though  he  had  no  such  lease  (n).  But  still  he  would  be 
liable  to  a  special  action  on  the  case  if  be  made  such  an  assertion 
knowing  it  to  be  false,  or  as  it  seems,  without  any  probable  cause. 

*The  plaintiff  (o)  declared,  that  he  was  seized  of 
the  manor  and  castle  of  H.  by  purchase  from  Lord  Aud-  [  *289  ] 
ley,  and  that  he  was  about  to  demise  the  castle  and  ma- 
nor of  H.  to  Ralph  Egerton  for  a  term  of  twenty-two  years ;  that 
the  defendant  said,  "  I  have  a  lease  of  the  castle  and  manor  of  H. 
for  ninety  years,"  and  then  and  there  showed  and  published  a  de- 
mise, supposed  to  be  made  by  George  Lord  Audley,  grandfather  to 
the  said  Lord  Audley,  for  ninety  years,  to  Edward  Dickenson  her 
husband,  and  published  the  said  demise  as  a  good  and  true  lease, 
when,  in  fact,  the  lease  was  counterfeited  by  her  husband,  and  the 
defendant  knew  it  to  be  counterfeited;  by  reason  of  which  words, 
the  said  R.  E.  did  not  proceed  to  accept  the  plaintiff's  lease.     The 

(I)  For,  according  to  the  judgment  of  the  court,  in  the  case  of  Gerrard  v. 
Dickenson,  4  Co.  18,  if  an  action  should  lie  where  the  defendant  himself  claims 
an  interest,  how  can  any  make  claim  or  title  to  any  land,  or  begin  any  suit,  or 
seek  any  advice,  or  seek  advice  and  counsel  least  he  should  be  subject  to  an  ac- 
tion which  would  be  inconvenient,  and  that  this  was  agreeable  to  the  opinion  in 
Banister's  case,  that  no  action  lies  against  one  who  publishes  another  to  be  his 
villein  without  adding  something  by  way  of  threat  which  occasions  special 
damage. 

(m)  Infra.  289. 

(n)  Jenk.  247.  Cro.  E.  14.  Mo.  144,  188,  410.  Roll.  R.  409.  4  Rep.  18. 
Yelv.  89.  Cro.  Car.  140.  Cro.  J.  197,  485.  ■  1  Roll.  R.  244.  3  Buls.  75. 
Pal.  529. 

(o)  Sir  G.  Gerrard  v.  Dickenson,  4  Rep.  18.    Cro.  Eliz.  197. 


289  CIVIL  REMEDY— OCCASION. 

defendant,  in  her  plea,  denied  her  knowledge  of  the  forgery  ;  and 
the  plaintiff  demurred.     And  it  was  resolved, 

1.  That  if  the  defendant  had  affirmed  and  published  that  the 
plaintiff  had  no  light  to  the  castle  and  manor  of  H.,  but  that  she 
herself  had  right  to  them,  in  that  case,  because  the  defendant  her- 
self pretended  right  to  them,  although  in  truth  she  had  none,  no 
action  would  lie. 

And,  therefore,  that  for  the  said  words,  "  I  have  a  lease  of  the 
manor  of  H.  for  ninety  years,"  although  *it  is  false,  yet 
[  *290  ]  no  action  lies  for  slandering  his  title  or  interest  in  the 
said  castle  or  manor,  (p). 

2dly.  That  there  was  other  matter  in  the  declaration  sufficient 
to  maintain  the  action,  and  that  was  because  it  was  alleged  in  the 
declaration,  that  the  defendant  knew  of  the  communication  of  the 
making  of  the  lease  to  R.  Egerton,  and  knew,  also,  that  the  lease 
was  forged  and  counterfeited,  and  yet,  against  her  knowledge,  she 
had  affirmed  and  published  that  it  was  a  good  and  true  lease. 

So  in  the  case  of  Goulding  v.  Herring  Qq)  it  was  agreed,  that 
though  the  plaintiff  claims  title,  yet  if  it  be  found  to  be  done  mali- 
ciously, the  action  lies  ;  but  if,  upon  evidence,  any  probable  cause 
of  claim  appears,  it  ought  not  to  be  found  maliciously.  So  accord- 
ing to  Rolle,  C.  J.  (r),  "  If  I  have  colour  of  title  to  land,  and  I 
say  to  another,  I  have  better  title  to  the  land  than  you,  no  action 
will  lie  against  me,  though  my  title  be  not  so  good  as  the  other  is." 
Hence  it  appears,  that  although  the  making  such  a 

[  *291  ]  claim  be  sufficient  to  repel  the  ordinary  *action  for  slan- 
der, yet  that  a  special  action  lies  where  a  party  makes 
such  a  claim  vexatiously,  and  without  probable  cause.  Those  cases 
where  a  party  who  disparages  the  title  of  another  makes  no  claim 
himself,  fall,  as  will  be  seen,  under  a  very  different  consideration. 

(p)  And  note,  that  although  it  appeared  by  the  defendant's  bar,  that  she  had 
no  interest  in  the  lease,  yet  as  the  matter  alleged  in  the  declaration  did  not 
maintain  the  action,  the  bar  would  not  make  it  good. 

{q)  1  Roll.  141.  (r)  Sty.  414, 


CHAPTER    XIII. 


Malice  in  Fact. 


*In  the  next  place,  -when  do  the  occasion  and  circum-  [  *292  ] 
stances  of  the  publication  afford  a  qualified  defence  de- 
pendent on  the  absence  of  express  malice  ?  In  other  words,  when 
is  exnress  malice  or  malice  in  fact  essential  to  the  right  of  action  ? 
The  extensive  principle  which  governs  this  class  of  cases,  where 
the  existence  of  express  malice  is  a  civil  responsibility,  comprehends 
all  where  the  author  of  the  alleged  mischief  acted  in  the  discharge 
of  any  public  or  private  duty,  whether  legal  or  moral,  which  the 
ordinary  exigencies  of  society,  or  his  own  private  interest,  or  even 
that  of  another  called  upon  him  to  perform,  but  where  the  occasion 
does  not  furnish  an  absolute  defence,  independently  of  the  question 
of  intention,  as,  on  the  one  hand,  it  would  be  contrary  to  common 
convenience  to  fetter  mankind  in  their  ordinary  communications  by 
the  apprehension  of  vexatious  litigation ;  so,  on  the  other,  would  it 
be  highly  mischievous  to  allow  men  to  inflict  the  most  cruel  injuries 
to  reputation  and  character  with  impunity,  under  the  cloak  and 
pretence  of  discharging  some  duty  to  themselves  or  to  society, 
when  they  were,  in  fact,  actuated  by  the  most  malicious 
intentions.  The  *law,  therefore,  in  such  instances,  and,  [  *293  ] 
as  it  seems,  most  wisely,  makes  the  issue  to  depend  on 
the  existence  or  absence  of  express  malice  ;  and  thus  an  ample 
shield  of  protection  is  extended  to  all  who  act  fairly  and  prudently, 


293  CIVIL  REMEDY— OCCASION. 

in  order  that  men  may  not  be  deterred,  by  the  fear  of  an  action  or 
prosecution,  from  making  communications  which  are  either  impor- 
tant to  themselves  or  beneficial  to  the  public. 

Among  the  most  prominent  of  the  decisions  comprehended  within 
the  present  class  are  those  -which  have  arisen  from  actions  brought 
by  servants  against  masters. 

The  giving  a  character  of  a  servant  is  one  of  the  most  ordinary 
communications  which  a  member  of  society  is  called  on  to  make,  but 
it  is  a  duty  of  great  importance  to  the  interests  of  the  public,  and  in 
respect  of  that  duty,  a  party  offends  grievously  against  the  interests 
of  the  community  in  giving  a  good  character  where  it  is  not  deserv- 
ed ;  or  against  justice  and  humanity  in  either  injuriously  refusing  to 
give  a  character  (a),  or  in  designedly  misrepresenting  one  to  the 
detriment  of  the  individual. 

The  general  rule  is  that  where  a  master  gives  a  character  of  a 
servant,  unless  the  contrary  be  expressly  proved,  it  will 
[  *294  ]  be  presumed  that  the  *character  was  given  without  mal- 
ice (5),  and  the  plaintiff,  to  support  the  action,  must 
prove  that  the  character  was  both  falseli/  and  maliciously  given  [1]. 

An  action  was  brought  (c)  by  the  plaintiff  for  publishing  the  fol- 
lowing letter  to  one  Collier,  respecting  the  plaintiff 's  character  as  a 
servant :  "  Two  days  I  gave  him  money  to  go  into  the  city  and  buy 
books.  When  he  came  home,  I  desired  him  to  reckon  up  his  ac- 
count ;  he  did  so.  But  being  one  day  more  curious  than  I  some- 
times was,  I  looked  over  his  account,  article  by  article  ;  and  ia  one 

(a)  No  action  will  lie  against  a  master  for  refusing  to  give  a  character.  Car- 
rol v.  Bird,  3Esp.  C.  204. 

(h)  Burr.  2425.  Edmonson  v.  Stephenson,  B.  N.  P.  8.  Lord  Ellenborough, 
in  Hodgson  v.  Scarlett,  IB.  &  A.  240,  observed,  "  In  the  case  of  master  and 
servant,  the  convenience  of  mankind  requires  that  what  is  said  in  fair  communi- 
cation between  man  and  man  should  be  privileged,  if  made  bona  fide,  and  with- 
out malice.  If,  however,  the  party  giving  the  character  knows  what  he  says  to 
be  untrue,  that  may  deprive  him  of  the  protection  which  the  law  throws  around 
such  communications. 

(c)  Weatherstone  v.  Hawkins,  1  T.  R.  110. 

[1]  But  see  Patterson  v.  Jones,  8  B.  and  C.  578.  also  note  (a  a)  post  page 
301. 


MALICE  IN  FACT.  294 

book  I  well  knew  the  price  of,  I  found  he  had  charged  me  one  shil- 
ling more  than  it  cost,  and  that  shilling  he  kept  in  his  pocket.  The 
next  day,  the  very  same  affair ;  and  both  these  days  my  neighbor 
Metcalf  was  in  my  shop,  and  knows  it  well,  and  said  he  would  not 
keep  such  a  man  a  day,  or  something  to  that  purpose.  Two  ma<'-a- 
zines  he  charged  two  shillings  for  binding,  the  people  received  no 
more  than  Is.  8d.  and  this  I  can  prove."  A  verdict  was 
*found  for  the  plaintiff  on  one  of  the  counts  of  the  dec-  [  *295  ] 
laration,  containing  the  above  letter,  subject  to  the 
opinion  of  the  court  on  the  following  case  : 

The  plaintiff  was  brother-in  law  to  Mr.  Collier ;  he  was  in  the 
service  of  the  defendant,  and  was  by  him  turned  away.  Rogers,  to 
whom  the  plaintiff  was  recommended  to  be  taken  as  a  servant,  ap- 
plied to  the  defendant  for  a  character,  which  not  being  advanta- 
geous, but  to  the  effect  stated  in  the  declaration,  he  (Rogers,)  did 
not  take  him.  Collier,  upon  this,  repeatedly  called  upon  the  de- 
fendant, upon  which  the  letter  stated  in  the  declaration  was  written, 
with  an  intent  to  prevent  an  action  by  the  plaintiff  for  the  words  by 
the  defendant  to  Rogers.  The  writ  was  sued  out  on  the  very  day 
the  letter  was  written. 

The  question  for  the  opinion  of  the  court  is,  whether  this  action 
lies. 

Lord  Mansfield,  C.  J.  "  I  have  held  more  than  once,  that  an 
action  will  not  lie  by  a  servant  against  his  former  master,  for  words 
spoken  by  him  in  giving  a  character  of  the  servant. 

"  The  general  rules  are  laid  down  as  Mr.  Wood  (the  plaintiff's 
counsel)  has  stated  ;  but  to  every  libel  there  may  be  a  necessary  or 
implied  justification  from  the  occasion,  so  that  what,  taken  abstract- 
edly, would  be  a  publication,  may,  from  tiie  occasion, 
prove  to  be  none,  as  if  it  were  read  in  *a  judicial  pro-  [  *296  ] 
ceeding.  Words  may  also  be  justified  on  account  of 
their  subject  matter,  or  other  circumstances.  In  this  case,  instead 
of  the  plaintiff's  shewing  it  to  be  false  and  malicious,  it  appears  to 
be  incident  to  the  application  by  Rogers  to  the  master  of  the  ser- 
vant ;  and  the  letter  was  written  to  the  brother-in-law  of  the  plain- 
tiff, for  the  express  purpose  of  preventing  an  action  being  brought." 

Buller,  J.  "  This  is  an  exception  to  the  general  rule,  on  account 


296  CIVIL  REMEDY— OCCASION. 

of  the  occasion  of  writing  the  letter.  Then  it  is  incumbent  on  the 
plaintiff  to  prove  the  falsehood  of  it :  and  in  actions  of  this  kind, 
unless  he  can  prove  the  words  to  be  malicious  as  well  SiS  false,  they 
are  not  actionable." 

Judgment  for  the  defendant. 

In  the  case  of  Rogers  v.  Sir  Grervase  Clifton  Bart,  (d),  the  fol- 
lowing facts  appeared  in  evidence.  The  plaintifif  having  been  hired 
as  a  servant  by  the  defendant,  lived  about  six  months  in  his  service? 
when  the  latter  turned  him  away  without  giving  him  a  month's  warn- 
ing ;  in  consequence  whereof,  the  'plaintiff,  conceiving  himself  en- 
titled to  a  month's  wages,  refused  to  quit  the  service  without  being 
paid  that  sum.  On  this  refusal,  the  defendant  procured  an  officer 
from  the  public  office  to  put  the  plaintiff  out  of  the  house, 
[  *297  ]  and  employed  his  attorney  to  settle  his  "wages  with  him. 
Immediately  after  this,  the  defendant,  who  was  going  into 
the  country,  called  on  Mr.  Holland,  with  whom  the  plaintiff  had  pre- 
viously lived,  to  inform  him  that  the  plaintiff  had  behaved  in  an  im« 
pertinent  and  scandalous  manner :  that  he  the  defendant  had  dis- 
charged him  from  his  service,  when  the  plaintiff  refused  to  go  with- 
out a  month's  wages  ;  and  he  therefore  desired  Mr.  Holland  not  to 
give  him  another  character.  While  the  plaintiff  was  in  the  country 
he  offered  himself  to  a  Mr.  Hand,  stating  that  he  had  lived  with  the 
defendant.  Upon  which,  Mr.  Hand  wrote  to  the  defendant  for  a 
character  ;  and  received  the  following  answer  : 

"  Sir, — In  answer  to  your's,  wich  came  to  hand  yesterday,  I 
beg  leave  to  acquaint  you,  that  Thomas  Rogers  did  not  live  with  me 
six  months,  as  he  has  told  you,  and  I  wish  I  had  never  taken  him 
into  my  house,  as  he  is  a  bad  tempered,  lazy,  impertinent  fellow,  and 
has  given  me  a  great  deal  of  trouble,  as  I  was  obliged  to  send  an 
officer  from  the  Marlborough  street  PoUce  Office,  to  put  him  and  his 
things  out  of  my  house,  and  also  to  employ  Mr.  Barnet,  my  attor- 
ney, of  Soho-square,  to  settle  his  wages  ;  as  I  look  upon  it  he  will 
take  any  advantage  he  can. 

^'  I  am,  Sir,  your  most  obedient  humble  servant, 

"  Gervase  Clifton." 

{,d)  3  B.  &  p.  587. 


MALICE  IN  FACT.  298 

*Upon  receipt  of  this  letter,  Mr.  Hand  refused  to  take 
the  phiintifF  into  his  service.  It  appeared  that  Mr.  IIol-  [  *298  ] 
land  never  Avas  applied  to  for  a  character  of  the  plaintiff, 
after  the  communication  made  to  him  by  the  defendant ;  and  Mr. 
Holland  stated,  that  without  such  communication  he  should  have  de- 
clined giving  another  character  to  the  plaintiff.  The  plaintiff  also 
proved,  by  servants  of  the  family,  that  while  in  the  defendant's  ser- 
vice he  had  conducted  himself  -well,  and  that  no  complaints  of  the 
nature  ascribed  to  him  in  the  defendant's  letter  had  all  that  time  ex- 
isted. The  jury  found  a  verdict  for  the  plaintiff  with  <£20  damages, 
but  liberty  was  reserved  to  the  defendant  to  have  a  nonsuit  entered. 

After  the  case  had  been  argued,  Lord  Alvanley,  C.  J.  said,  "  If 
it  were  to  be  understood,  that  whenever  a  master  gives  a  bad  char- 
acter to  a  servant  who  has  quitted  his  service,  he  may  be  forced  by 
the  servant,  in  justification  of  such  conduct  as  a  master,  to  prove  the 
particulars  which  he  has  stated  respecting  the  servant,  it  would  be 
impossible  for  any  master,  (so  understanding  the  law,  at  least  with 
any  regard  to  his  own  safety)  to  give  any  character  but  the  most 
favourable  to  a  servant,  and  consequently  impossible  for  a  servant, 
not  entitled  to  the  most  favourable  character,  to  obtain 
any  new  place.  In  the  two  *cases  of  Edmondson  v.  Ste-  [  *299  ] 
veTzson  (e),  and  Weather  stone  v.  //az^Hns  (/),  the  law 
upon  this  subject  appears  to  me  to  be  laid  down  as  clearly  as  can  be 
wished.  Unquestionably  the  master,  who  has  given  a  bad  character 
of  a  servant  to  persons  enquiring  after  his  character,  is  not  bound  to 
substantiate  by  proof  what  he  has  said ;  but  it  is  equally  clear,  that 
the  servant  may,  if  he  can,  prove  the  character  to  he  false,  and  the 
question  between  the  master  and  servant  will  always,  in  such  case,  be, 
■ffheiher  what  the  former  has  spoken  concerning  the  latter  be  mali- 
cious and  defamatory.  In  this  case,  we  are  to  consider  whether  the. 
evidence  adduced  by  the  plaintiff  was  sufficient  to  be  left  to  the  jury. 
Kis  lordship,  after  stating  the  evidence,  proceeded  to  observe,  that 
the  circumstance  of  the  plaintiff's  refusal  to  quit  his  master's  house 
till  his  wages  had  been  paid,  was  the  only  act  of  impertinence  prov- 

^  (e)B.  N.P.  8.  (/)  IT.  R.  110. 

Vol.  I.  47 


299  CIVIL  REMEDY— OCCASION. 

ed  against  him ;  and  that  the  defendant  was  not  called  upon  by  that 
single  act  to  seek  out  Mr.  Holland,  and  officiously  to  state  what  he 
did ;  that  if  a  servant  were  strongly  suspected  of  having  committed 
a  felony  whilst  in  his  master's  service,  it  would  be  the  master's  duty 
to  warn  others  from  taking  him  into  their  service ;  but 
[  *800  ]  that,  in  the  principal  case,  the  offence  imputed  to  *th6 
plaintiff  appeared  to  be  of  a  trivial  nature.  His  lordship 
concluded  by  saying,  that  he  should  have  grievously  invaded  the 
province  of  a  jury,  had  he  not  left  it  to  them  to  say  whether,  con- 
Bidering  all  the  circumstances  of  the  case,  the  defendant's  conduct  was 
not  malicious,  and  that  he  did  not  consider  himself  at  liberty  to  dis- 
turb the  verdict  they  had  given. 

Rooke,  J.  was  of  the  same  opinion,  and  wished  it  to  be  under- 
stood as  his  opinion,  that  a  master  may  at  any  time,  whether  asked 
or  not,  speak  of  the  character  of  his  servant,  provided  that  he 
speak  in  the  honesty  of  his  heart ;  and  that  an  action  cannot  be 
maintained  against  him  for  so  doing ;  at  the  same  time,  masters  are 
not  \^arranted  in  speaking  ill  of  their  servants  from  heat  and  passion. 

Chambre,  J.  referred  to  the  case  of  Lowry  v.  Aikenhead  (^), 
before  Lord  Mansfield.  In  that  case,  the  rule  laid  down  by  Lord 
Mansfield  was,  "  That  where  a  person,  intending  to  hire  a  servant, 
applies  to  a  former  master  for  a  character,  the  master  is  not  bound 
to  prove  the  truth  of  the  character  he  gives  ;  for  what  he  speaks  of 
the  servant,  he  does  not  speak  officiously,  but  only  discloses  that 
which  rests  in  his  knowledge  alone  ;  but  that  where  a  master  speaks 
ill  of  a  servant,  without  any  previous  application  having 
[  *301  ]  been  *made  to  him,  there  he  must  plead  and  prove  the 
truth  of  the  character  in  justification. 

And  the  rule  was  discharged. 
.    It  appears,  therefore,  to  be  fully  established,  that  a  servant,  in 
an  action  against  a  former  master,  must  prove  express  malice. 

It  seems  to  have  been  laid  down  generally  by  Lord  Mansfield,  in 
the  case  cited  by  Mr.  Justice  Chambre,  that  where  a  master,  ?m* 
ashed,  gives  a  bad  character  of  a  servant,  he  may  justify  as  in  other 
cases  ;  and  though  Mr.  J.  Rooke  seems  to  have  expressed  an  opin- 

(g)  Mich.  8  G.  3. 


MALICE  IN  FACT.  301 

ion  somewhat  different,  there  can  be  no  doubt  that  the  manifestation 
of  forward  and  officious  zeal  on  the  part  of  a  defendant,  who,  un- 
invited^ gives  a  character  to  the  prejudice  of  his  former  servant, 
would  be  a  material  guide  to  a  jury  in  ascertaining  his  real  mo- 
tive [a  a\. 

Where  a  plaintiff,  knowing  the  character  which  his  master  will 
give,  procures  it  to  be  given  for  the  sake  of  founding  an  action  upon 
it,  he  will  not  be  allowed  to  recover  Qi). 

Many  other  cases  may  be  referred  to  as  illustrative  of  the  general 
principle  that  a  publication  warranted  by  an  occasion  apparently 
beneficial  and  honest  is  not  actionable  in  the  absence  of  express 
malice. 

The  defendant  who    was    sergeant  in   a   volunteer 
*corps,  of  whish  the  plaintiff  also  was  a  member,  repre-     [  *302  ] 

[a  a]  In  Pattison  v  Jones,  8  Barn,  and  Cres.  578,  the  master  wrote  a  first 
letter  without  a  previous  application  having  been  made  for  a  character  of  the 
servant,  but  wrote  a  second  in  answer  to  inquiries  made  of  him  as  to  the  plain- 
tiff's character.  Lord  Tenterden,  C.  J.  left  it  to  the  jury  to  say,  whether  the 
communication  contained  in  that  letter  was  made  by  him  bona  fide,  acting  under 
a  belief,  that  he  was  discharging  a  duty  which  he  owed  to  the  party  who  was 
about  to  take  the  plaintiff  into  his  service,  or  whether  it  was  made  maliciously, 
with  an  intention  of  doing  an  injury  to  the  plaintiff;  and  the  jury  having  found 
that  the  communication  was  maliciously  made,  the  court  refused  to  disturb  the 
verdict. 

Liltledale,  J.  observed,  "  At  all  events,  where  the  master  volunteers  to  give 
the  character,  stronger  evidence  will  be  required  that  he  acted  lonufide,  than  ia 
the  case  where  he  has  given  the  character  after  being  required  to  do  so." 

In  the  same  case,  the  lord  chief  justice,  on  evidence  being  tendered  of  the 
truth  of  the  statements  made  in  the  letter,  in  order  to  show  that  the  communi- 
cation was  made  bona  fide,  expressed  some  doubt  whether  such  evidence  wag 
receivable  under  the  plea  of  the  general  issue,  but  received  the  evidence. 

In  the  case  of  Child  v.  Affleck,  9  B.  and  C  403.  the  defendant  had,  on  ap. 
plication  for  a  character,  stated,  in  a  written  answer,  that  the  plaintiff  had, 
whilst  in  her  service,  conducted  herself  disgracefully,  and  that  she  had  since 
been  a  prostitute  ;  and  a  similar  statement  had  been  made  by  the  defendant  to 
persons  who  had  recommended  the  plaintiff  to  her  ;  it  was  held,  that  they  were 
privileged  communications,  and  that  the  plaintiff  was  properly  nonsuited  for 
want  of  proof  of  malice. 

{h)  Per  Lord  Alvanley,  3  B.  and  P.  592.  King  v.  Waring,  et  ux.  5  Esp. 
C.  13. 


S02  CIVIL  REMEDY— OCCASION. 

sented  to  the  committee,  bj  whom  the  general  business  of  the 
corps  was  conducted,  that  the  plaintiff  was  an  unfit  and  improp- 
er person  to  be  permitted  to  continue  a  member  of  the  corps. 

The  words  charged  in  the  deolaration  were,  that  the  defendant 
had  said  that  the  plaintiff  had  been  the  executioner  of  the  King  of 
France,  and  that  he  had  clapped  his  hands,  rejoicing  at  the  event, 
adding,  that  France  would  then  be  one  of  the  first  countries  in  the 

world. 

It  appeared  in  evidence,  that  the  plaintiff  was  a  Frenchman,  and 
that  the  defendant  had  not  made  use  of  the  words  publicly,  but 
had  communicated  them  to  the  officers  of  the  corps,  who  constituted 
the  committee  for  its  regulation. 

Lord  EUenborough  said,  that  it  was  not  to  be  allowed  that  such  an 
action  could  be  sustained.  It  was  a  communication  made  upon  a 
most  important  matter  for  their  consideration,  whether  foreigners, 
the  natives  of  a  country  in  open  war  with  us,  were  to  learn  the  use 
of  arms  in  a  country  threatened  to  be  invaded  by  the  other.  The 
action  was  most  ill  advised  and  improper. 

In  Johnson  v.  Evans  (i),  the  words  were,  "  She  is  a  thief,  and 
tried  to  rob  me  of  part  of  her  wages."  It  appeared, 
[  *303  ]  upon  the  trial,  that  the  *plaintiff  had  been  servant  to  the 
defendant.  Upon  a  dispute  taking  place  he  discharged 
her,  and  some  difference  arising  respecting  the  payment  of  her 
wages,  he  charged  her  with  having  attempted  to  cheat  him  re- 
specting her  wages,  and  spoke  the  words  as  laid  ;  but  the  plaintiff 
failed  in  proving  them  to  have  been  spoken  at  that  time.  Having, 
however,  sent  for  a  constable,  in  order  to  take  her  into  custody,  he 
made  use  of  the  same  words  to  the  constable  when  he  came,  to 
whom  he  meant  to  have  given  her  in  charge,  but  which  in  fact  he  did 
not  do.  The  constable  proved  the  words  as  spoken  ;  but  it  further 
appeared,  in  the  course  of  his  evidence,  that  the  words  had  been 
spoken  by  the  defendant,  addressed  to  him  in  his  character  of  con- 
stable, and  in  the  course  of  the  charge  and  complaint  which  the 
defendant  made  to  him  against  the  plaintiff. 

C»)  3  Esp.  C.  33. 


MALICE  IN  FACT.  SOS 

Lord  Eldon,  C.  J.  said,  that  the  evidence  given  of  the  speaking 
of  the  words  laid  in  the  declaration  was  not  such  as  to  induce  him 
to  direct  the  jury  to  find  a  verdict  for  the  plaintiif.  Words  used  m 
the  course  of  a  legal  or  judicial  proceeding,  however  hard  they 
might  bear  upon  the  party  of  whom  they  were  used,  were  not  such  as 
would  support  an  action  for  slander.  In  this  case,  they  were 
spoken,  by  the  defendant  under  a  belief  of  the  fact,  and  when  he 
was  about  to  proceed  legally  to  punish  it,  it  would  be  a 
matter  of  *2JuUio  inconvenience,  and  operate  to  deter  [  *30i  I 
persons  from  preferring  their  complaints  against  offenders, 
if  words  spoken  in  the  course  of  their  giving  charge  of  them ,  or 
preferring  their  complaint,  should  be  deemed  actionable.  Plaintiff 
nonsuited  [1]. 

Still  this,  it  seems,  amounts  to  a  prima  facie  defence  only,  liable 
to  be  overthrown  by  proof  of  express  malice  on  the  part  of  the  de- 
fendant, as  by  shewing  that  he  knew  at  the  time  that  the  charge  was 
false.  In  Smith  v.  HodgMns  (k),  the  case  was  this.  The  plaintiff 
assaulted  and  beat  the  defendant  on  the  highway.  The  defendant 
meeting  a  constable,  requested  him  to  take  charge  of  the  plaintiff; 
and  the  constable  refusing  to  arrest  the  plaintiff  unless  the  defend- 
ant would  charge  him  with  the  commission  of  a  felony,  the  defend- 
ant did  so,  and  judgn:fent  was  given  on  demurrer  for  the  plaintiff; 
the  court  observing,  that  there  was  no  ground  for  the  charge  of 
felony. 

And  where  property  has  been  actually  stolen  (^),  the  defendant 
is  not  warranted  in  the  communication  of  a  suspicion,  which  in  fact 
is  unfounded,  except  for  the  purpose  of  legal  injury  [a  a]. 

Under  this  class  of  communications  may  not  improperly  be  ranked 

{k)  Cro.  Car.  276. 

(I)  Powell  V.  Plunket,  Cro.  Car.  52.  Sed  vide. 

[a  a]  Althougli  statements  made  ia  reoular  proceedings  at  law  are  privileoed 
if  bond  fide  made,  though  they  may  not  be  true,  yet  a  letter  addressed  to  a  judge 
being  an  irregular  and  improper  proceeding,  cannot  be  considered  as  falling 
•within  the  class  of  privileged  communications.  Gould  v.  Hulme,  3  C.  and  P. 
625. 

[1]  Note  [1]  p.  251,  supra.  See  also  Burlingham  v.  Burlingham,  8  Cowen 
41.  Allen  v.  Crofoot,  2  Wendell  515,  and  Lathrop  v.  Hyde,  25  Id.  448. 


304  CIVIL  REMEDY— OCCASION. 

those  publications  whose  professed  object  is  to  discuss,  for  tho  in- 
formation of  the  public,  the  merits  of  the  literary  pro- 
[  *305  ]  ductions  *of  the  day.  The  authors  of  these,  in  the  de- 
tection and  exposure  of  misrepresentations  in  fact,  false 
inferences,  vicious  principles  and  bad  taste,  undertake  the  discharge 
of  a  most  difficult  and  important  public  duty,  and  in  return  are  pri- 
vileged in  the  most  unlimited  exercise  of  their  reasoning  powers, 
and  of  their  talents  for  wit  or  satire,  so  long  as  it  is  confined  to  its 
legitimate  object,  the  merits  of  the  work  before  them,  and  is  not 
perverted  and  abused  for  the  purposes  of  personal  defamation  or  the 
gratification  of  private  malice. 

In  the  case  of  Sir  John  Carr  v.  Sood,  (7m),  the  plaintifi"  stated, 
in  his  declaration,  that  he  had  been  the  author  of  several  productive 
publications,  called  &c.  but  that  the  defendant  intending  to  expose 
him  to  contempt  and  ridicule,  had  published  a  malicious  and  defama- 
tory libel  concerning  the  said  Sir  John,  entitled, "  My  Pocket  Book 
or  hints  for  a  righte  merrie  and  conceited  Tour,  to  be  called,  The 
Stranger  in  Ireland  in  1805,  by  a  Knight  Errant."  The 
same  libel  containing  a  malicious  and  defamatory  print  of  and  con- 
cerning the  said  Sir  John  and  his  books,  called  "Frontispiece,"  and 
entitled,  "  The  Knight  leaving  Ireland  with  regret ;  "  and  repre- 
senting, in  the  said  print,  a  certain  false,  scandalous,  malicious,  de- 
famatory, and  ridiculous  representation  *of  the  said  Sir 
[  "SOS  ]  John,  in  the  form  of  a  man  of  ludicrous  and  ridiculous 
appearance,  holding  a  pocket-handkerchief  to  his  face, 
and  appearing  to  be  weeping ;  and  also  a  certain  false,  malicious, 
and  ridiculous  representation  of  a  man  of  ludicrous  and  ridiculous 
appearance,  following  the  representation  of  Sir  John,  representing 
a  man  loaded  with  and  bending  under  the  weight  of  three  large 
books,  one  of  them  having  the  word  Baltic  printed  on  the  back 
thereof,  and  a  pocket  handkerchief  appearing  to  be  held  in  one  of 
the  hands  of  the  said  representation  of  a  man,  and  the  corners 
thereof  appearing  to  be  held  or  tied  together  as  if  containing  some- 
thing therein,  with  the  printed  word  Wardrobe  depending  therefrom, 
for  the  purpose  of  rendering  the  said  Sir  John  ridiculous,  and  there- 
Cm)  1  Camp.  N.  P.  354. 


MALICE  IN  FACT.  308 

by  meaning  that  one  copy  of  the  said  first-mentioned  book  of  the 
said  Sir  John,  and  two  copies  of  the  book  of  the  said  Sir  John  se- 
condly above-mentioned,  were  so  heavy  as  to  cause  a  man  to  bend 
under  the  weight  thereof ;  and  that  his  the  said  Sir  John's  wardrobe 
was  very  small,  and  capable  of  being  contained  in  one  pocket  hand- 
kerchief." The  declaration  concluded  by  laying,  as  special  dam- 
age, that  Sir  John  had  been  prevented  from  selling  to  Sir  Richard 
Phillips,  for  £600,  the  copyright  of  a  book  of  which  the  said  Sir 
John  was  the  author,  containing  an  account  of  a  tour  of  the  said 
Sir  John  through  part  of  Scotland. 

*Lord  Ellenborough,  as  the  trial   was   proceeding,     [  *307  ] 
intimated  an  opinion,  that  if  the  book  published  by  the 
defendant  only  ridiculed  the  plaintiff  as  an  autJwr,  the  action  could 
not  be  maintained. 

Garrow,  for  the  plaintiff,  allowed,  that  when  his  client  came 
forward  as  an  author,  he  subjected  himself  to  the  criticism  of  all 
who  might  be  disposed  to  discuss  the  merits  of  his  works,  but  that 
criticism  must  be  fair  and  liberal ;  its  object  ought  to  be  to  en- 
lighten the  public,  and  to  guard  them  against  the  supposed  bad 
tendency  of  a  particular  publication  presented  to  them,  not  to  wound 
the  feelings  and  ruin  the  prospects  of  an  individual ;  if  ridicule 
was  employed,  it  should  have  some  bounds.  While  a  liberty  was 
granted  of  analyzing  literary  productions,  and  pointing  out  their 
defects,  still  he  must  be  considered  as  a  libeller,  whose  only  object 
was  to  hold  up  an  author  to  the  laughter  and  contempt  of  mankind. 
A  man  with  a  wen  upon  his  neck  perhaps  could  not  complain  if  a 
surgeon,  in  a  scientific  work,  should  minutely  describe  it,  and  con. 
sider  its  nature  and  the  means  of  dispersing  it ;  but  surely  he 
might  support  an  action  for  damages  against  any  one  who  should 
publish  a  book  to  make  him  ridiculous  on  account  of  his  infirmity, 
with  a  caricature  print  as  a  frontispiece.  The  object  of 
the  book  published  by  the  defendant  clearly  was,  *by  [  *308  ] 
means  of  immoderate  ridicule,  to  prevent  the  sale  of  the 
plaintiff's  works,  and  entirely  to  destroy  him  as  an  author.  In  the 
late  case  of  Tabert  v.   Tipper  (n),  his  lordship  had  held,  that  a 

(n)  Vid.  p.  311. 


308  CIVIL  REMEDY—OCCASION. 

publication  by  no  means  so  offensive  or  prejudicial  to  the  object  of 
it,  ■was  libellous  and  actionable. 

Lord  Ellenborough.  "  In  that  case,  the  defendant  had  falsely 
accused  the  plaintiff  of  publishing  what  he  had  never  published  ; 
here  the  supposed  libel  has  only  attacked  those  works  of  which  Sir 
John  Carr  is  the  avowed  author ;  and  one  writer,  in  exposing  the 
follies  and  errors  of  another,  may  make  use  of  ridicule,  however 
poignant.  Ridicule  is  often  the  fittest  weapon  that  can  be  employ- 
ed for  such  a  purpose.  If  the  reputation  or  pecuniary  interests  of 
the  person  ridiculed  suffer,  it  is  damnum  absque  injuria.  Where 
is  the  liberty  of  the  press,  if  an  action  can  be  maintained  on  such 
principles  ?  Perhaps  the  plaintiff's  Tour  through  Ireland  is  now 
unsaleable,  but  is  he  to  be  indemnified  by  receiving  a  compensation 
in  damages  from  the  person  who  may  have  opened  the  eyes  of  the 
public  to  the  bad  taste  and  inanity  of  his  compositions  ?  Who 
would  have  bought  the  works  of  Sir  Robert  Filmer,  after 
[  *309  ]  he  had  been  refuted  by  Mr.  Locke  ?  *But  shall  it  be 
said,  that  he  might  have  sustained  an  action  for  defama- 
tion against  that  great  philosopher,  who  was  labouring  to  enlighten 
and  ameliorate  mankind  ?  We  really  must  not  cramp  observations 
upon  authors  and  their  works  ;  they  should  be  liable  to  criticism, 
to  exposure,  and  even  to  ridicule,  if  their  compositions  be  ridicu- 
lous ;  otherwise,  the  first  who  writes .  a  book  on  any  subject  will 
obtain  a  monopoly  of  sentiment  and  opinion  respecting  it.  This 
would  tend  to  the  perpetuity  of  error.  "Reflection  on  personal  char- 
acter is  another  thing.  Show  me  an  attack  on  the  moral  character 
of  the  plaintiff,  or  any  attack  upon  his  character,  unconnected 
with  his  authorship,  and  I  shall  be  as  ready  as  any  judge  who  ever 
sat  here  to  protect  him  ;  but  I  cannot  hear  of  malice  on  account  of 
turning  his  works  into  ridicule." 

The  counsel  for  the  plaintiff  complaining  of  the  unfairness  of  the 
publication,  and  particularly  of  the  print  affixed  to  it,  the  trial  pro- 
ceeded. 

The  Attorney-general  having  addressed  the  jury  on  the  behalf  of 
the  defendants. 

Lord  EUenborough  said,  every  man  who  publishes  a  book  commits 


MALICE  IN  FACT.  309 

himself  to  the  judgment  of  the  puhlic,  and  any  one  may  comment 
upon  his  performance.  If  the  commentator  does  not  step  aside 
from  the  work,  or  mtrodnce  fiction  for  the  purpose  of  condemnation, 
he  exercises  a  fair  and  legitimate  right.  In  the  present 
case,  had  *the  party  writing  the  criticism  followed  the  [  *310  ] 
plaintiff  into  domestic  life  for  the  purposes  of  slander, 
that  would  have  been  libellous  ;  but  no  passage  of  this  sort  has  been 
produced,  and  even  the  caricature  does  not  affect  the  plaintiff,  ex- 
cept as  the  author  of  the  book  which  is  ridiculed.  The  works  of 
this  gentleman  may,  for  aught  I  know,  be  very  valuable,  but,  what- 
ever their  merits,  others  have  a  right  to  pass  their  judgment  upon 
them, — to  censure  them  if  they  bo  censurable,  and  to  turn  them  into 
ridicule  if  they  be  ridiculous.  The  critic  does  a  great  service  to  the 
public,  who  writes  down  any  vapid  or  useless  publication,  such  as 
ought  never  to  have  appeared.  He  checks  the  dissemination  of  bad 
taste,  and  prevents  people  wasting  both  their  time  and  money  upon 
trash  I  speak  of  fair  and  candid  criticism  ;  and  this  every  one  has 
a  right  to  publish,  although  the  author  may  suffer  loss  from  it. 
Such  a  loss  the  law  does  not  consider  as  an  injury,  because  it  is  a 
loss  which  the  party  ought  to  sustain.  It  is,  in  short,  the  loss  of 
fame  and  profit  to  which  he  was  never  entitled. 

"  Nothing  can  be  conceived  more  threatening  to  the  liberty  of  the 
press  than  the  species  of  action  before  the  court.  We  ought  to  re- 
sist an  attempt  against  free  and  liberal  criticism  at  the  threshold." 
The  Chief  Justice  concluded  by  directing  the  jury,  that 
if  the  writer  of  the  publication  *complained  of  had  not  [  *311  ] 
travelled  out  of  the  work  he  criticised  for  the  purpose  of 
slander,  the  action  would  not  lie  ;  but  if  they  could  discover  in  it 
anything  fersonally  slanderous  against  the  plaintiff,  unconnected  with 
the  works  he  had  given  to  the  public,  in  that  case  he  had  a  good 
cause  of  action,  and  they  would  award  him  damages  accordingly. 
Verdict  for  the  defendant  (o). 

(o)  In  the  case  of  Stiiart  v.  Lovell,  2  Starkie's  C.  73,  the  plaintiff  being  one  of 
the  proprietors  of  the  Courier  newspaper,  brought  his  action  against  the  defend- 
ant and  the  editor  of  the  Statesman  :  Lord  Ellenborough,  in  summing  up  to  the 
jury,  observed,  "  In  the  first  the  plaintiff  was  described  as  the  prostituted  Courier, 

Vol.  1.  48 


812  CIVIL  REMEDY— OCCASION. 

[  *312  ]  In  the  case  of  Tdbert  v.  Tij^per,  alluded  to  in  *thc 
preceding  one  (p),  the  action  -was  brought  for  a  libel  on 
the  plaintifif,  contained  in  a  periodical  work  called  "  The  Satirist,  or 
Monthly  Meteor,"  insinuating  that  the  plaintiff  (who  Avas  a  vender 
of  children's  books)  had  published  and  vended  books  of  an  improper 
and  immoral  tendency. 

Upon  the  question,  whether  a  witness  ought  to  be  cross-examined 
as  to  the  defendant's  having  published  particular  books. 

Lord  Ellenborough  observed,  "  The  main  question  here  is,  quo 
animo  the  defendant  published  the  article  complained  of ;  whether 
he  meant  to  put  down  a  nuisance  to  public  morals,  or  to  prejudice  the 
plaintiff.  To  ascertain  this,  it  is  material  to  know  the  general 
nature  of  the  defendant's  publications,  to  which  the  libel  alludes, 
and  I  therefore  think  that  the  evidence  is  receivable.  The  plaintiff 
is  bound  to  show  that  the  defendant  was  actuated  by  malice,  and 
the  defendant  discharges  himself  by  proving  the  contrary.  Liberty 
of  criticism  must  be  allowed,  or  we  should  neither  have  purity  of 
taste  nor  of  morals.  Fair  discussion  is  essentially  nec- 
[  *313  ]  essary  to  the  truth  of  history  and  the  advancement  *of 
science.  That  publication,  therefore,  I  shall  never  con- 
sider as  a  libel,  which  has  for  its  object  not  to  injure  the  reputation 

and  his  full  blown  baseness  and  infamy  were  represented  as  holding  him  fast  to 
his  present  connections,  and  preventing  him  from  forming  new  ones.  It  was 
certainly  competent  to  one  public  writer  to  criticise  another,  exerting  his  talents 
in  all  ihe  latitude  of  free  communication  belonging  to  a  public  writer,  and  so  it 
appeared  to  Lord  Kenyon,  in  the  case  of  Harriot  v.  Stuart,  1  Esp.  c.  437. 
That  the  opinions  and  principles  of  a  controversial  writer  were  open  to  criti- 
cism and  ridicule,  in  the  same  way  as  those  of  any  other  author,  but  that  the 
privilege  did  not  extend  to  calumnious  remarks  on  the  private  character  of  the 
individual.  In  that  respect  the  editor  of  a  newspaper  enjoyed  the  rights  of 
protection  in  common  with  every  other  subject. 

"  Since  then,  the  defendant  in  this  case  had  stigmatised  the  plaintiff  as  the 
venerable  apostle  of  tyranny  and  oppression,  and  as  a  man  whose  full  blown 
baseness  and  infamy  held  him  fast  to  his  present  connection,  because  they  left 
him  without  the  power  of  forming  new  ones ;  in  all  this,  he  undoubtedly  had 
overstepped  the  limits  which  had  been  drawn,  and  by  which  his  conduct  ought 
to  have  been  regulated." 

Cp)  1  Camp.  C.  350. 


MALICE  IN  FACT.  313 

of  any  individual,  but  to  correct  misrepresentations  of  fact,  to  refute 
sophistical  reasoning,  to  expose  a  vicious  taste  in  literature,  or  to 
censure  what  is  hostile  to  morality." 

But  in  the  same  case  it  appeared  that  the  libel  falsely  imputed  to 
the  plaintiflf  the  publication  of  some  silly  verses  of  an  improper 
tendency,  which  were  specified  in  the  libel,  and  set  forth  in  the  dec- 
laration ;  and  it  was  allowed  on  the  part  of  the  defendant,  that  the 
plaintiff  had  not  published  them,  but  it  was  contended  that  they  were 
a  fair  specimen  of  his  publications. 

Lord  Ellenborough,  however,  informed  the  jury,  that  it  was 
certainly  actionable,  gravely  to  impute  to  a  bookseller  having  publish, 
ed  a  poem  of  this  sort,  to  which  he  was  a  stranger  ;  as  the  evident 
tendency  of  the  unfounded  imputation  was  to  hurt  him  in  his 
business. 

In  the  case  of  Eeriot  v.  Stuart  (g),  it  was  held  that  no  action 
was  maintainable  for  asserting  in  a  newspaper  that  another  public 
newspaper  was  the  most  vulgar,  ignorant  and  scurrilous  journal  ever 
published  in  Great  Britain.  But  subsequent  words, 
alleging  that  it  was  the  lowest  paper  in  circulation,  *were  [  *314  ] 
deemed  actionable,  since  they  affected  the  sale  and  profits 
to  be  made  by  advertising. 

In  the  case  of  Dlbdin  v.  Bostock(r^,  which  was  an  action  for 
publishing  a  paragraph  in  a  newspaper,  stating  that  the  songs  at  a 
place  of  public  entertainment  were  not  of  the  plaintiff's  composition, 
as  they  professed  to  be,  and  representing  the  performances  as  de- 
spicable, and  as  gaining  no  applause  except  from  persons  hired  for 
the  purpose.  Lord  Kenyon  observed,  "  The  editor  of  a  public 
newspaper  may  fairly  and  candidly  comment  on  any  place  or  species 
of  public  entertainment,  but  it  must  be  done  fairly,  and  without 
malice  or  view  to  injure  or  prejudice  the  proprietor  in  the  eyes  of 
the  public  ;  if  so  done,  however  severe  the  censure,  the  justice  of 
it  screens  the  editor  from  legal  animadversion  ;  but  if  it  can  be 
proved  that  the  comment  is  unjust,  is  malevolent,  or  exceeding  the 
bounds  of  fair  opinion,  it  is  a  libel  and  actionable."  [a  a]  [IJ 

(q)  1  Esp.  C.  437.  (r)  1  Esp.  C.  29. 

[a  a]  In  Thompson  v.  Shackell,  I  Moody  and  Malkin  187,  on  the  trial  of  an 


314  CIVIL  REMEDY— OCCASION. 

In  the  late   case  of  Dunne  v.  Anderson  (s),  it   seems  to  have 
been  doubled  whether  the  plaintiff,  by  preferring  a  petition  to  parli- 

action  for  an  alleged  libel  concerning  a  picture  of  the  plaintiflTs  exhibited  at 
Somerset  House,  describing  it  as  a  mere  daub,  Best  C.  J.  left  it  to  the  jury  to 
say  whether  the  publication  was  zfair  and  temperate  criticism  on  the  painting 
of  the  plaintiff,  or  was  made  the  vehicle  of  personal  malignity  towards  the 
plaintiff.  He  added,  "  I  myself  have  acted  on  the  doctrine  of  my  Lord  Ellen- 
borough  in  the  case  referred  to,  (Carr  v.  Hood),  though  I  do  not  go  quite  so 
far  as  he  did  in  that  case,  because  I  think  no  personal  ridicule  of  the  author  is 
justifiable  ;  but  if  this  be  really  an  honest  criticism,  and  no  more,  the  defendant 
is  entitled  to  your  verdict."     Verdict  for  the  defendant. 

In  the  case  of  Soane  v.  Knight,  1  jM.  and  M.  74,  the  plaintiff,  an  architect, 
complained  of  a  libel  published  of  him  in  his  profession  ;  the  alleged  libel  pro- 
fessed to  give  an  account  of  a  new  order  of  architecture,  called  the  Boeotian 
Order,  stating  it  to  have  been  invented  by  the  plaintiff,  and  illustrated  the  new 
order  by  examples  of  such  buildings,  all  the  buildings  instanced  being  the  works 
of  the  plaintiff.  Lord  Tenterden,  in  summing  up  to  the  jury,  said,  "This 
publication  professes  in  substance  to  be  a  crticism  on  the  architectural  works  of 
the  plaintiff.  On  such  works,  as  well  as  on  literary  productions,  any  man  has 
a  ritrht  to  express  his  opinion,  and  however  mistaken  in  point  of  taste  that  opin- 
ion may  be,  or  however  unfavorable  to  the  merits  of  the  author  or  artist,  the 
person  entertaining  it  is  not  precluded  by  law  from  its  fair,  reasonable,  and  tem- 
perate expression.  It  may  be  fairly  and  reasonably  expressed,  although  through 
the  medium  of  ridicule.  In  the  present  case,  the  censure  is  certainly  strong, 
nevertheless,  if  you  think  the  criticism  fair,  reasonable,  and  temperate,  al- 
though it  may  not  be  correct,  the  defendant  will  be  entitled  to  your  verdict ;  if 
you  think  it  unfair  and  intemperate,  and  written  with  the  intention  and  for  the 
purpose  of  injuring  the  plaintiff  in  his  profession,  by  imputing  to  him  that  he 
acts  on  absurd  principles  of  art,  you  will  find  for  the  plaintiff."  Verdict  for  the 
defendant. 

Whatever  can  be  fairly  said  of  the  works  of  an  author  or  of  himself,  as  con- 
nected with  the  ivork,  is  not  actionable,  unless  it  appear  that,  under  the  pretext 
of  criticism,  the  party  lakes  the  opportunity  of  calumniating  the  author. 
M'Leod  V.  Wakeley,  3  C.  &  P.  311. 

[1]  In  Cooper  v.  Lawson,  8  Adolph.  &  Ellis  746,  the  libel  stated  that  the 
•plaintiff  had  becoirie  surety  for  a  petitioner  relative  to  an  election  for  a  member 
of  parliament  of  a  certain  borough,  and  had  made  oath  that  he  was  qualified 
in  point  of  property  to  become  such  surety,  when  in  fact  he  was  not  able  to 
pay  his  debts.  The  author  of  the  libel  asked  why  the  plaintiff,  who  was  un- 
connected with  the  borough,  in  reference  to  the  election  of  the  member  of  parli- 
ament should  have  incurred  an  exposure  of  his  circumstances,  and  gave  a  re- 

(s)  8  Bing.  88.    But  see  Lake  v.  King,  and  Kemp  v.  Gee,  supra  244,  245. 


MALICE  IN  FACT.  814 

ament  against  the  practice  of  empiricism,  had  laid  himself  open  to 
a  criticism  on  his  composition  which  attempted  to  show  that  the  peti- 
tioner's  ignorance  in  his  profession  was  manifest  on  the  face  of  his 
own  petition. 

*Ihe  instances  already  cited,  in  illustration  of  the  [  *315  ] 
general  principle,  which  makes  the  occasion  operate  as  a 
defence,  unless  express  malice  be  proved,  are  those  where  the  occa- 
sion  consists  in  the  discharge  of  a  duty  of  a  public  nature.  The 
same  principle  it  is  next  to  be  seen  has  an  extensive  application, 
where  a  party  acts  fairly  and  bona  fide  in  the  prosecution  of  his  own 
or  even  another's  interest. 

It  has  been  seen,  that  where  a  publication  is  made  in  the  course 
of  a  judicial  proceeding,  no  action  for  slander  is  maintainable,  the 
very  occasion  furnishes  an  absolute  defence.  And  where  an  appli- 
cation is  made  for  the  purpose  of  obtaining  redress,  though  it  be  to 
a  party  who  has  no  direct  means  of  giving  relief,  yet,  if°the  appli- 
cant  may  possibly  obtain  such  relief  indirectly,  and  he  act  bona  fide, 
it  seems  that  he  is  not  liable  to  an  action.  In  the  case  of  the  King 
v.  Baijleij{a~),i\xe  defendant  had  addressed  a  letter  to  General 
Willes,  and  the  four  principal  officers  of  the  Guards,  to  be  by  them 

sponse  to  the  inquiry  by  saying  "  tiiere  can  be  but  one  answer  :  he  is  hired  for 
the  occasion-  The  defendant  pleaded  that  the  allegations  in  the  publication 
were  true,  and  that  the  publication  was  a  correct  report  of  proceedin^rs  in  a 
legal  court,  together  with  a>r  and  bona  fide  commentary  ihereon.  Replica- 
tion 7)e  injuria.  Lord  Denman,  C.  J.  told  the  jury  that  the  principal  question 
in  the  case  was,  whether  the  plaintiff  was  qualified  to  be  a  surety.  If  he  was 
so  qualified  he  was  entitled  to  damages;  if  not,  then  they  v^cre  to  say  whether 
the  comments  which  imputed  to  him  that  he  was  a  hired  swearer,  and  which  would 
make  him  liable  for  a  wilful  false  statement  of  facts,  were  comments,  and  if  thev 
should  think  them  not  fair  the  plaintiff  would  be  entitled  to  daraa-es  The 
jury  found  for  the  defendant,  and  on  a  motion  by  the  plaintiff  for  a°new  trial 
the  court,  although  of  opinion  that  the  comment  was  not  a  just  inference  from 
he  facts  stated  in  the  libel,  held  that  the  question  had  been  correctly  submitted  to 
the  jury  Ihe  court  in  this  case  holding  that  when  a  comment  raises  an  impu- 
ta;ion  of  motives,  which  may  or  may  not  be  a  just  inference  from  the  preceding 
statement,  it  is  a  distinct  libel,  and  the  propriety  of  the  comment  must  be  submtl 
tea  to  the  jury. 

{a)  3  Bac.  Ab.  Libel,  A.  2.  cited  by  Best,  J,  6  B.  &  A.  647. 


315  CIVIL  REMEDY— OCCASION. 

presented  to  the  king,  stating  that  the  prosecutor  had  obtained  from 
Lira  (the  defendant,)  a  warrant  for  the  payment  of  money  due  to 
him  from  the  government  under  promise  of  paying  the  defendant 
Buch  money,  and  that  the  prosecutor  had  received  the  money,  and 
had  not  paid  it  over  to  the  defendant.  And  the  court 
[  "SIS  ]  *held  that  this  was  no  libel,  but  a  representation  of  an 
injury  shown  up  in  a  proper  way  for  redress, — yet  nei- 
ther the  ofiEicers  nor  the  king  could  give  the  defendant  direct  assist- 
ance in  obtaining  payment  of  the  money  wrongfully  withheld  (6). 

So  also  in  the  case  of  Fairman  v.  Ives  (c),  it  was  held  that  a 
petition  addressed  by  a  creditor  of  an  officer  in  the  army,  to  the 
secretary  at  war,  and  complaining  of  unjust  and  unfair  conduct,  in 
respect  of  a  debt  due  to  the  defendant  from  the  plaintiff,  and  writ- 
ten for  the  purpose  of  procuring  payment  of  the  debt,  through  the 
interference  of  the  secretary,  was  not  libellous,  the  petition  con- 
taining no  more  than  a  fair  and  honest  statement  of  facts,  in  the  ap- 
prehension of  the  defendant. 

In  the  case  of  an  ordinary  action  for  slander  of  title,  where  the 
defendant  claims  no  title  for  himself,  but  either  denies  the  plaintiff's 
title,  directly  or  impliedly,  by  assorting  a  title  in  another, — and 
where  for  anything  that  appears  this  is  the  mere  wanton  act  of  a 
stranger,  there  being  nothing  to  explain  his  motive  or  conduct,  it 
seems  that  the  ordinary  principle  would  prevail,  and  malice  in  law 
would  result  from  the  very  act  of  the  defendant,  in  doing  that  which 
was  liktly  to  occasion  damage,  ia  the  absence  of  any  circumstances 
which  would  furnish  any  legal  justification  or  excuse  ; 
[*  317  ]  *and  therefore,  the  privilege  which  belongs  to  one  who  as- 
serts his  own  claim,  does  not  protect  him  in  falsely  as- 
serting a  title  in  a  mere  stranger.  The  defendant  had  said,  "  I 
know  one  who  had  two  leases  of  his  (the  plaintiff's)  land,  who  will 
not  part  with  them  at  any  reasonable  rate."  And  it  was  held,  that 
he  could  not  justify,  by  showing  that  he  meant  to  allege  a  title  by 
two  leases  in  himself  (d).     So  it  has  been  held,  that  if  the  defend- 

(b)  See  the  observations  of  Bayley,  J.  5  B.  &  A.  647. 

(c)  5B.  &  A.  642. 

{d)  Pennyman  v.  Rabanks,  Cro.  Eliz.  427.  Vin.  Ab.  551.  pi.  U. 


MALICE  IN  FACT.  317 

ant  ?ay  that  J.  S.  has  a  better  title  to  the  land  than  the  tenant  in 
possession,  but  make  no  claim  himself,  an  action  lies  (^e) 

Where  the  defendant  in  an  action  for  slander  of  title,  was  not  a 
mere  -wrongful  intruder,  but  vras  connected  in  interest,  though  re- 
motely, with  the  transaction,  the  question  is,  whether  he  acted  bona 
Jide,  or  with  a  malicious  intention  to  injure  the  owner, — and  this  is 
properly  a  question  of  fact  for  the  jury,  under  all  the  circumstances. 

In  the  case  of  Smiths.  Spooner  (/),  the  action  was  brought  for 
preventing  the  sale  of  lease-hold  property,  by  the  assignee  of  the 
lessee,  against  the  owner  of  the  property,  who  had  declared  at  the 
time  of  putting  up  the  property  *for  sale,  that  the  plain- 
tiflf  could  make  no  title.  It  appeared,  that  the  defend-  [*318  ] 
ant  was  present  when  the  lot  was  put  up,  and  that;  he 
then  told  the  auctioneer  that  it  was  of  no  use  to  sell  it,  as  the  house 
was  his  own  ;  he  was  the  landlord,  and  that  no  title  could  be  made 
to  it.  On  this,  some  persons  Avho  had  intended  to  bid  retired,  and  the 
defendant  offered  to  purchase  the  lease,  having  also  made  a  previous 
offer  of  the  same  kind.  Previous  to  the  trial,  the  defendant  had  obtain- 
ed possession  of  the  premises  by  an  ejectment,  and  the  plaintiff's  attor- 
ney had  tendered  him  five  quarters'  rent,  and  the  costs  of  the  eject- 
ment, if  he  would  deliver  back  the  possession.  The  jury  found  a 
verdict  for  the  plaintiff ;  but  the  court  afterwards  directed  a  nonsuit 
to  be  entered,  on  the  ground  that  there  was  no  evidence  of  express 
malice.  Eut  in  a  subsequent  case  (^),  where  the  owner  of  a  house 
had  prevented  the  plaiutiff,  who  held  under  a  lease  for  years,  from 
disposing  of  the  remainder  of  his  term,  by  falsely  asserting  that  he 
had  no  title  ;  the  court,  after  a  verdict  for  the  plaintiff,  refused  a 
rule  to  show  cause  why  there  should  not  be  a  new  trial.  Lord  El- 
lenborough,  C,  J.  observing,  that  "  The  circumstances  of 
*the  defendant's  title  and  interest,  may  rebut  the  implica-  [  *319  ] 
tion  of  malice  ;  but  here  it  was  left  to  the  jury,  to  say, 
whether  there  was  malice  or  not." 

(e)  Jenk.  247. 

(/  )  3  Taunt.  246. 

("■)  Saiith  V.  Spooner,  K.  B.  Mich.  1811.  Quaere  whether  the  parties  were 
not  the  same  as  in  the  case  of  Smith  v.  Spooner,  3  Taunt-  246,  in  which  a  non- 
suit was  entered  in  the  C.  P.  Mich-  1810. 


019  CIVIL  REMEDY— OCCASION. 

Where  the  alleged  slander  of  title  was  conveyed  in  a  letter,  to  a 
person  about  to  purchase  the  estate  from  the  plaintiff,  imputing  in- 
sanity to  Y.  from  whom  the  plaintiff  purchased  it,  and  stating  that 
the  title  would  therefore  be  disputed  ;  in  consequence  of  which,  the 
person  refused  to  complete  the  purchase  ;  it  appeared,  that  the  de- 
fendant had  married  the  sister  of  Y.  who  was  heir  apparent  to  her 
brother.  And  the  court  held,  that  under  the  circumstances,  the  de- 
fendant ought  to  have  the  free  liberty  of  stating  objections  to  the 
title,  to  the  proposed  purchaser,  as  in  the  case  of  Gerard  v.  Dicken- 
son and  others^  which  was  not  stronger  than  the  present,  though 
such  a  liberty  was  not  allowed  to  a  mere  stranger,  according  to  the 
rule  in  Jenkins's  Centuries,  immiscet  rei  se  aliense  (A),  but  that  it 
was  impossible  to  treat  the  defendant  as  a  stranger  ;  for  though  he 
was  indeed  a  stranger  as  to  any  vested  interest,  he  had  an  interest, 
in  probable  expectation,  so  as  to  induce  him  to  bestir  himself  and 
look  about,  lest  an  improper  conveyance  should  be  made  injurious  to 
his  right.  That  the  question  distinctly  and  substantively 
[  *320  ]  was  whether  'the  defendant,  in  making  the  communica- 
tion which  he  had  made,  had  acted  hona  fide,  believ- 
ing it  to  be  true  (i). 

An  attorney  to  a  creditor  (A;),  who  had  previously  committed  an 
act  of  bankruptcy,  stopt  the  sale  of  an  estate  previously  mortgaged 
and  assigned  to  the  plaintiff,  by  declaring  the  creditor's  bankruptcy, 
and  that  a  docket  had  been  made  out  for  a  commission  ;  it  turned 
out  that  an  act  of  bankruptcy  had  been  committed,  but  that  no  com- 
mission had  been  sued  out.  On  action  brought,  it  was  held,  that  in 
order  to  support  it,  there  should  be  proof  of  malice,  either  express 
or  implied  ;  that  if  the  defendant  acted  bond  fide^  and  told  the  truth 

{h)  247.  p.  C.  36. 

{i)  Pitt  V.  Donovan,  1  M.  &  S.  639.  The  learned  judge  who  tried  the  cause 
had  stated  to  the  jury,  that  if  the  evidence  satisfied  them  as  men  of  good  sense 
and  understanding,  that  Mr.  Y.  was  insane,  or  if  the  defendant  entertained  a 
persuasion  that  he  was  insane,  on  such  grounds  as  would  have  persuaded  a  man 
of  sound  sense  and  knowledge  of  business,  then  the  defendant  would  be  enti- 
tled to  the  verdict.  The  jury  found  for  the  plaintiff;  but  the  court  granted  a 
new  trial,  on  the  ground  that  the  question  was  not  correctly  left  to  the  jury. 

(Jt)  Hargreave  v.  Le  Breton,  Burr.  2422. 


MALICE  IN  FACT.  S^ 

he  did  no  more  than  his  duty;  and  though  he  went  beyond  what 
was  strictly  true,  still,  if  there  was  no  material  variance,  and  no  dif- 
ference  made  with  respect  to  the  plaintiff's  title,  the  action  was  not 
maintainable. 

In  general,  where  a  communication  is  made  in  *confi-     [  *321  ] 
dcnce,  either  by  or  to  a  person  interested  in  the  communi- 
cation, supposing  it  to  be  true,  or  by  way  of  admonition  or  advice, 
It  seems  to  be  a  general  rule,  that  malice  is  essential  to  the  main- 
te  nance  of  an  action  (T).  [1] 

So  far  has  this  principle  been  carried,  that  it  has  even  been  held 
that  the  publishing  an  advertisement  in  a  newspaper,  involving  a 
suspicion  that  the  plaintiff  had  been  guilty  of  bigamy,  yet  being 
published  bona  fide,  at  the  instance  of  one  who  w°as  iu'terested  in 
the  discovery,  was  not  hbellous  (m). 

(I)  Vide  supra,  217,  21S. 

(m)  Delany  v.  Jones,  4  Esp.  C.  191.     The  alleged  libel  was  as  follows  :  - 

"  TEN  GUINEAS  REWARD. 

''  Whereas,  by  a  letter  lately  received  from  the  West  Indies,  an  event  is  stated 
to  be  announced  by  a  newspaper  that  can  only  be  investigated   by  these  means  — 
Ihis  IS  to  request,  that  if  any  printer  or  other  person  can  ascertain  that  James 
k"1;     u't'^^  plaintiff),  some  years  since  residing  at  Cork,  late  lieutenant 
in  the  North  Lincoln  Mililia,  was  married  previous  to  nine  o'clock  in  the  morn- 
ing of  the   lOth  of  August,    1799,  they  will  give  notice  to Jones  (the  de- 
fendant), No.  14  Duke-Street,  St.  James's,  and  they  shall  receive  the  reward." 
Lord    Ellenborough,  in  summing  up  to  the  jury,  said,  "  that  although  that 
which  IS  spoken  or  written  may   be  injurious  to  the  character  of  the  party,  yet 
If  done  l>onaJide,.s^.nk  a  view  of   investigating  a  fact,  in  which    the  pLy 
makmg   it  is  interested,  it  is  not  libellous.     If,  therefore,  this  invesligatio.\fa3 
set  on  foot,  and  this  advertisement  published   by  the  plaintiff's  wife,  eub.r  from 
an.xiety  to  know  whelher  she  was  legally  the  wife  of  the  plainffT  or  whether 
he  had  another  wife    living  when  he  married   her,  though  that  is  ck.ne  through 
tne  medium  of  imputing  bigamy  to  the  plamtiff,  it  is  justifiable ;  but  in  such  a 
case  1   is    necessary  for  the  defendant  who  published  the  libel  to  show  that  he 
published  It  under  such    authority,  and  with  such  a  view.     TAe  jury  are,  there- 
lore,  hrst  to  say,  whether  the  advertisement  imputes  a  cha^e  of  bigamy  to  the 
plaintiff,  and  if  they  think  it  does,  then  to  inquire  wheiAer  the  libel  was  pub' 

[1]  See  Bradley  v.  Heath,  12  Pick.  163. 

VOL.     L  AQ 


322  CIVIL  REMEDY— OCCASION. 

[  *322  J  *Ii)  an  action  (n)  for  a  libel  on  the  plaintiflF,  in  his 
profession  as  a  solicitor,  the  libel,  as  set  out  in  the  dec- 
laration, vpas  contained  in  a  lettet  -written  by  the  defendant  to 
Messers.  Wright  and  Co.  bankers  at  Nottingham,  and  charged  the 
plaintiff  with  improper  conduct  in  the  management  of  their  con- 
cerns. It  appeared,  however,  upon  the  trial,  that  the  letter  was 
intended  as  a  confidential  communication  to  those  gentlemen,  and 
that  the  defendant  himself  was  interested  in  the  affairs  which  he 
supposed  to  be  mismanaged  by  the  plaintiff.  After  the  cause  had 
been  opened  by  the  plaintiff's  counsel. 

Lord  Ellenborough,  C.  J.  said,  if  the  letter  had  been  written  by 
the  defendant  confidentially,  and  under  an  wipression 
[  '323  ]  that  its  statements  were  *well  founded^  he  was  clearly  of 
opinion  that  no  action  could  be  maintained.  It  was  im 
possible  to  say  that  the  defendant  had  maliciously  published  a  libel 
to  aggrieve  the  plaintiff,  if  he  was  acting  bond  fide  with  a  view 
to  the  interests  of  himself  and  the  persons  whom  he  addressed  ; 
and  if  a  communication  of  this  sort,  which  was  not  meant  to  go  be- 
yond those  immediately  interested  in  it,  were  the  subject  of  an  ac- 
tion for  damages,  it  would  be  impossible  for  the  affairs  of  mankind 
to  be  conducted.  His  Lordship  referred  to  the  case  Cleaver  v. 
Sarraude,  tried  on  the  northern  circuit  while  he  was  at  the  bar  : 
where,  in  an  action  like  the  present,  it  appeared  that  the  letter  had 
been  written  confidentially  to  the  Bishop  of  Durham,  who  employed 
the  plaintiff,  as  steward  to  his  estates,  to  inform  him  of  certain  sup- 
posed malpractices  on  the  part  of  the  plaintiff;  upon  which  the 
judge,  who  presided,  declared  himself  of  opinion  that  the  action 
was  not  maintainable,  as  the  defendant  had  been  acting  bona  fide, 
and  the  nousuit  which  he  directed,  had  been  acquiesced  in  from 
a  conviction  entertained  by  the  plaintiff's  counsel  of  its  being  found- 
ed in  law. 
The  Attorney-general,  for  the  defendant,  said,  that  his  client,  at 

lished  •with  a  view  by  the  wife,  of  fairly  finding  out  a  fact  respecting  her  hus- 
band, in  which  she  was  materially  interested.     If  it  was  so,  the  publication 
is  not  a  libel,  and  the  defendant  is  entitled  to  a  verdict"     The  jury  found  a  ver- 
dict for  the  defendant, 
(n)  M'Dougall  v.  Glairidge,  1   Camp.  C.  267. 


MALICE  IN  FACT.  323 

the  time  of  writing  the  letter,  was  certainly  impressed  with  a  belief 
of  the  truth  of  the  charj^es  it  contained,  but  had  since 
seen  *reason  to  believe  they  were  groundless  ;  he  there-     [  *324  ] 
fore  consented  to  withdraw  a  juror. 

So,  where  the  person  to  whom  the  communication  is  made  is  in- 
terested, as  in  the  case  of  Cleaver  v.  iSaraude,  above  quoted,  no 
action  is  maintainable  without  proof  of  express  mahce. 

In  the  case  of  Dunman  v.  Bigg  (o),  the  plaintiff  was  a  dealer  in 
beer,  buying  it  of  a  brewer,  and  selling  it  to  publicans.  Wishing 
to  open  an  account  with  the  defendant,  a  brewer,  one  Leigh  became 
his  surety  for  the  price  of  such  quantities  of  beer  as  should,  from 
time  to  time,  be  supplied  to  him,  the  defendant  promising  to  inform 
Leigh  of  any  default  in  his  payments  made  by  the  plauitiff. 

After  the  parties  had  dealt  together  for  some  time,  the  defendant 
went  to  Leigh,  and  spoke  to  him  in  very  opprobrious  terms  of  the 
plaintiff,  saying,  that  he  wished  to  cheat  him,  that  he  had  sent  back 
as  unmerchantable,  beer  which  he  himself  had  adulterated  ;  that  he 
was  a  rogue  and  a  rascal,  &c.  At  this  period  there  was  a  sum  of 
money  due  from  the  plaintiff  to  the  defendant  in  respect  of  the 
beer,  for  which  Leigh  had  given  a  guarantee.  Lord  EUenborough, 
C.  J.  said,  ''  I  am  inclined  to  think  that  this  was  a  privileged  com- 
munication. Had  the  defendant  gone  to  any  *other  man, 
and  uttered  these  words  of  the  plaintiff,  they  certainly  [  *325  ] 
would  have  been  actionable  ;  but  Leigh,  to  whom  they 
were  addressed,  was  guarantee  for  the  plaintiff,  and  the  defendant 
had  promised  to  acquaint  him  when  any  arrears  were  due.  He 
therefore  had  a  right  to  state  to  Leigh  what  he  really  thought  of  the 
plaintiff's  conduct  in  their  mutual  dealings;  and  even  if  the  repre- 
sentations which  he  made  were  intemperate  and  unfounded,  still,  if 
he  really  believed  them  at  the  time,  he  cannot  be  said  to  have  acted 
maliciously,  and  with  an  intent  to  defame  the  plaintiff.  To  be  sure, 
he  could  not  lawfully,  under  colour  and  pretence  of  a  confidential 
communication,  destroy  the  plaintiff's  character,  and  injure  his  cred- 
it, but  it  must  have  the  most  dangerous  effects  if  the  communications 
of  business  are  to  be  beset  with  actions  of  slander.     In  this  case 

(0)  Sittings  in  London  after  T.  T.  48  G.  3.   Camp,  R.  260. 


325  CIVIL  REMEDY— OCCASION. 

the  defendant  seems  to  have  been  betrayed  by  passion  into  some  un- 
^varrantable  expressions ;  I  ^vill  therefore  nut  nonsuit  the  plaintiff, 
and  it  will  be  for  the  jury  to  say,  whether  these  expressions  were 
used  with  a  malicious  intention  of  defaming  the  plaintiff,  or  \?ith  good 
faith  to  communicate  facts  lo  the  surety  which  he  was  interested  to 
know  (p)  [1]. 

(p)  The  parties  agreed  to  withdraw  a  juror. — For  further  illustrations  of  this 
division  of  the  subject,  see  R.  v.  Enes,  Andr.  229.  Lord  Mordingion's  case,  R- 
V.  Jenneaur,  3.  Bac.  Abr.  452,  and  R.  v.  Bailey,  Andr.  229.  So  it  was  held 
that  the  owner  of  a  public  house  could  not  maintain  an  action  against  a  neigh- 
bouring publican,  for  giving  a  bad  character  of  such  house  to  a  person  who, 
being  in  treaty  for  purciiasing  it,  applied  to  the  defendant  for  information,  pro- 
vided (as  is  stated)  there  is  some  evidence,  though  slight  of  the  truth  of  the  as- 
sertion. Humber  v.  Ainge.  Abbott,  L.  C.  J.  West.  13  Feb.  1819.  Man- 
ning's Index,  lit.  Libel,  pi,  13.  In  the  case  of  Wilson  v.  Stephenson,  2  Piice 
282,  where  the  defendant  had  stated  that  the  plaintiff  had  murdered  his,  the 
plaintiff's  brother,  the  plaintiff  having,  in  fact,  been  the  innocent  occasion  of 
his  brother's  death  ;  and  the  defence  was,  that  the  words  had  been  spoken  in 
the  way  of  admonition,  and  the  jury  found  that  the  words  were  not  spoken  ma- 
liciously ;  which  was  recorded  as  a  verdict  for  the  defendant,  the  court  refused 
to  disturb  the  verdict.  See  further  as  to  words  spoken  by  way  of  admonition  or 
advice.     2  Brownl.  151,  152.     2  Burn's  Ecc.     Law  179.     3  Bac.  Ab.  412. 

[1]  To  the  illustrations  given  of  this  division  of  the  subject,  it  is  supposed 
that  the  case  of  Prosser  and  another  v.  Bromage,  4  Bam.  &  Cres.  247,  referred 
to  by  the  author  in   page  220     supra,  might  well  have  been  added  here  as  it 
Bett'es  a  most  important  principle   bearing  upon  the  every  day  transactions  of 
life.     The   plaintiffs  were  bankers  and  the  charge  was  that  in  answer  to  a 
question  put  by  one  Watkins  to   the  defendant,  whether  he  had  said  that   the 
plaintiff  's  bank  had  stopped?  he  had  answered  itivas  true;  he  had  been  told  so  ; 
that  it  was  so  reported  at  C.  and  that  no  one  would  take  their  bills,  and  that  he 
had  come  to  town  in  consequence  thereof.     It  was  proved  that  C.  I),  had  told 
the  defendant  that  there  was  a  run  on  the  plaintiffs'  bank  at  M.     The  defendant 
had  a  verdict,  and  a  new  trial  was  granted  on  the  ground  of  the  misdirection  of 
the  jury,  but  Bayley,  J.  who  delivered  the  judgment  of  the  court  observed, 
"  Had  it  been  noticed  to  the  jury  hoiv  the  defendant  came  to  speak  the  words, 
and  had  it  been  left  to  them  as  a  previous  question,  whether  the  defendant  under- 
stood Watkins  as  asking  for  information  for  his   own  guidance,  and   that  the 
defendant  spoke  what  he  did  to  Watkins,  merely  by  way  of  honest   advice  to 
regulate  his  conduct,  the  question  of  malice  in  fact  would  have  been  proper  as 
a  second  question  to  the  jury,  if  their  minds  were  in  favor  of  the  defendant  upon 
the  first."     See  also  Pasley  v.  Freeman,  3  T.  R.  51,  and  "Van  Spike  v.  Cleyson, 
Cro.  Eliz.  541. 


MALICE  IN  FACT.  326 

*It    must,  however,   be   remarked,  that  in  all   these     [  *326  ] 
cases,  -wbere  the  occasion  is  sufficient  to  raise  the  question 
of  actual  malice,  the  doctrine  must  be  understood  with  this  limita- 
tion, viz.   that  the  times  and  mode  of  the  publication  are  suited  to 
the  occasion.     For  it  seems  to  be  clear,  that  whether  the  occasion 
and  circumstances  supply  an  absolute  or  merely  a  qualified  justifica- 
tion, dependent  on  the  question  of  actual  malice,  they  do  not  extend 
to  justify  any  publication  which  is  not  warranted  by  the 
occasion  and  circumstances.     *In  the  instance  of  a  brief     [  *327  ] 
to  counsel,  for  instance,  the  publication  as  between  the 
attorney  and  counsel   may  not  be  libellous,  and  yet,  were  it  to  be 
printed  and  published,  there  might  be  a  libel  in  every  line.     Where 
the    defendant  who  had  acted  as  solicitor  to  a   commission  against 
Brown,  upon  a  petition  to   the  chancellor  to  supersede  the  commis- 

So  an  action  will  not  lie  for  slanderous  words,  oral  or  ivritten,  where  one 
member  of  a  church  imputes  to  another  member  of  the  same  church  the  com- 
mission of  a  crime,  if  the  words  be  spoken  or  written  in  the  course  of  church 
discipline,  and  it  be  not  proved  that  the  defendant  in  making  the  charge  was 
actuated  by  express  malice.  Jarvis  v.  Hatheway,  3  Johns.  R.  180  ;  O'Don- 
aghue  V.  McGovern,  23  Wendell  26. 

In  conclusion  upon  this  point,  "the  law"  as  is  well  observed  in  Holt's  N. 
P.  299,  in  a  note  to  Wyatt  v.  Gore,  "  respects  communications  made  in  confi- 
dence, notwithstanding  they  may  be  false  and  erroneous  and  prove  injurious  to 
the  party.  This  rule  or  rather  limitation  with  respect  to  the  general  law  of  libel, 
applies  equally  to  words  written  and  spoken.  It  is  meant  to  protect  the  com- 
munications of  business  and  the  necessary  confidence  of  man  in  man.  But  if 
the  communication  be  malicious  as  well  as  false,  and  under  the  cloak  of  confi- 
dence be  meant  to  defame,  it  is  no  longer  within  the  protection  of  the  rule. 
The  law  not  only  extends  this  exemption  to  the  confidential  communications  of 
friendship,  but  to  all  such  charges  as  necessarily  exclude  the  suspicion  of  malice, 
Weatherstone  v.  Hawkins,  1  T.  R.  110;  Dunman  v.  Bigg,  1  Camp.  R.  269  ; 
Rex  V.  Hart,  1  Wm.  Black.  386  ;  2  Burns'  Ecc.  Law,  779.  Under  communica- 
tions of  friendship  are  included  those  of  man  to  man  in  the  aid  of  business, 
duty,  public  or  private  functions,  security  of  property,  or  of  the  morals  or 
manners  of  his  family  :  in  a  word,  every  communication  the  object  of  which  is  to 
assist  one  man  without  injuring  another,  and  to  discharge  the  offices  of  a  man,  a 
citizen  and  christian.  The  law  of  libel  in  this  respect,  only  repeats  and  con- 
firms the  law  of  moral  duty  ;  and  in  any  doubt  on  this  head,  it  may  always  lead 
us  to  a  safe  conclusion  in  law,  to  inquire  simply  what  was  our  duty  as  to  the 
point  in  dispute,  in  morality."     See  also  note  [1],  page  246,  supra. 


299  CIVIL  REMEDY— OCCASION. 

sion,  published  an  address  to  the  creditors  in  a  public  newspaper, 
charfring  the  bankrupt  with  having  committed  a  gross  fraud  against 
his  creditors,  and  calling  on  the  latter  to  resist  the  proceedings, 
Lord  Ellenborough  held  that  as  the  communication  might  have  been 
made  in  a  manner  less  injurious,  it  was  to  that  extent  libellous  (^q). 

(q)  Brown  v.  Croome,  2  Starkie's  C.  297.  His  lordship  observed,  that  if  the 
publication  in  question  had  merely  suggested  doubts,  without  alleging  the  facts 
as  in  the  case  of  Delaney  v.  Jones,  the  main  grievance  would  have  been  want- 
ing. If  it  could  be  shewn,  that  an  advertisement  in  the  Gloucester  paper  was 
the  only  possible  means  of  communicating  notice  of  the  circumstances,  it  might 
be  sufficient  to  vindicate  the  mode  ;  one  person  could  have  no  right  to  take  meas- 
ures for  his  own  benefit  to  the  injury  of  another.  The  argument  which  had  been 
used  was  ingenious,  but  the  defendant  made  no  progress  in  his  defence,  unless 
he  could  shew  that  such  a  publication  was  the  only  effectual  mode  of  convening 
the  creditors.  The  want  of  proper  caution  had  rendered  the  publication,  ac- 
tionable, as  being  published  to  the  world  at  large  ;  this  made  an  essential  dis- 
tinction, which  applied  to  all  the  cases;  in  the  instance  of  a  biief  to  counsel 
for  instance,  the  publication  as  between  the  attorney  and  counsel  might  not  be 
libellous,  and  yet  if  it  were  to  be  printed  and  published,  there  might  be  a  libel 
in  every  line.  Every  unauthorized  publication,  to  the  detriment  of  another 
was,  in  point  of  law,  to  be  considered  as  malicious. 


CHAPTER    XIV 


Repetition  oe  Slander  invented  by  another. 

•The  doctrine  of  justification,  on  the  ground  that  the  [  *329  ] 
defendant  has  done  no  more  than  repeat  the  scandal  which 
he  has  hoard  from  another,  though  of  ancient  date,  rests  on  princi- 
ples so  dubious  and  has  been  so  limited  in  its  modern  application, 
that  it  seems  to  be  doubtful  whether  in  any  case  such  a  justification 
would  be  permitted  to  prevail  as  an  absolute  and  peremptory  defence 
without  reference  to  other  circumstances,  and  the  actual  intention  of 
the  publisher  [1]. 

And  for  this  reason  it  has  been  deemed  to  be  more  proper  to  rank 
this  species  of  defence  with  those  which  are  of  a  qualified  nature, 
and  which  depend,  for  their  consummation,  on  the  absence  of  express 
malice,  than  to  class  it  with  those  where  the  very  occasion  and  cir- 
cumstances furnish  an  absolute  and  peremptory  bar,  independently 
of  the  question  of  intention. 

The  doctrine  of  justification  by  hearsay  was  expressly 
recognized  in  Lord  Northampton's  *case  (a),  which  was     [  *330  ] 
upon  an  information  in  the  Star  Chamber,  for  scandalum 
magnatum.     The  resolution  contained  in  that  case,  has  a  plain  ref- 
erence to  the  rule  contained  in  the   statute  1  Westminster,  which 
enacts,  that  the  propagator  of  slander,  concerning  the  grandees  of 

[H  See  note  1,  page  340,  infra.  (a)  12  Rep, 


330  CIVIL  REMEDY— OCCASION. 

the  realm,  shall  be  imprisoned  until  he  give  up  the  author.  The 
resolution  was,  "  if  A.  say  to  B.  '  did  you  not  hear  that  C.  was 
guilty  of  treason'  ?"  This  is  tantamount  to  a  scandalous  publica- 
tion. And,  in  a  private  action  for  slander  of  a  common  person,  if 
J.  S.  publish  that  he  hath  heard  J.  N.  say,  that  J.  G.  was  a  traitor 
or  thief,  in  an  action  on  the  case,  if  the  truth  be  so,  he  may  justify  : 
but  if  J.  S.  publish  that  he  hath  heard  generally,  without  a  certain 
author,  that  J.  G.  was  a  traitor  or  thief,  there  an  action  sur  le  case 
lieth  against  J.  S.  for  this,  that  he  hath  not  given  to  the  party  grieved 
any  cause  of  action  against  any,  but  against  himself,  who  published 
the  words,  although  that  in  truth  he  might  hear  them,  for  otherwise 
this  might  tend  to  the  great  slander  of  an  innocent  person  ;  for,  if 
one  who  hath  Imsam  phantasiamyor  who  is  a  drunkard,  or  of  no  es- 
timation, speak  scandalous  words,  if  it  should  be  lawful  for  a  man  of 
credit  to  repeat  them  generally,  without  mentioning  the 
[  *331  ]  author,  *that  would  give  greater  color  and  probability  that 
they  were  true,  in  respect  of  the  credit  of  the  repeater, 
than  if  the  author  himself  should  be  mentioned  (5)." 

In  Crawford  v.  Middleton  (c),  it  was  held,  that  it  was  necessary 
for  the  plaintiff  to  negative  the  fact  of  the  defendant's  having  heard 
the  words,  which  he  pretended  to  repeat  as  spoken  by  another. 
But  in  the  case  of  'Woolnoth  v.  Meadoivs  (c?),  where  a  similar  ob- 
jection was  taken,  it  was  said  by  the  court,  that  Lord  Northampton's 
case  was  a  complete  answer  to  it. 

As  the  consideration  of  the  indemnity  consists  in  the  giving  the 
plaintiff  a  certain  cause  of  action  against  the  author,  or  at  least 
against  a  prior  propagator  of  the  slander,  if  the  disclosure  made  fall 
short  of  supplying  a  certain  cause  of  action,  it  will  not  avail  as  a 
justification. 

The  defendant  (e)  speaking  to  the  plaintiff,  who  was  a  tailor,  said, 
"  I  heard  you  were  run  away."  The  defendant  pleaded,  that  be- 
fore the  speaking  of  the  words,  he  had  heard  and  been  told,  by  one 

(h)  The  court  referred  to  34  and  35  Ed.  1,  and  30  Ass.  pi.  10.  in  the  Exche- 
quer.    Mich.  18  Ed.  1,     Rot.  4.  (c)   1  Lev.  82, 

{d)  6  East,  463.  (e)  Davis  v.  Lewis,  7  T.  R.  17. 


MALICE  IN  FACT.  331 

D.  Morris,  that  the  plaintiff  had  run  away,  for  which  reason  he  spoke 
the  words. 

*Lord  Keyon,  C.  J.  in  giving  judgment  for  the  plain-  [  *332  ] 
tiff  on  demurrer,  said,  "  Whether  this  he  considered  on 
the  authorities,  or  on  the  reason  of  the  case,  the  justification  cannot 
be  supported.  The  Earl  of  Northampton's  case  is  precisely  in  point. 
If  a  person  say,  that  such  a  particular  man,  naming  him,  told  him  a 
certain  slander,  and  that  man,  in  fact,  did  tell  him  so,  it  is  a  good 
defence  to  an  action  to  be  brought  by  the  person  of  whom  the  slander 
was  spoken  ;  but  if  he  assert  that  slander  generally,  and  without 
adding  who  told  him,  it  is  actionable.  Then  it  is  said,  it  is  sufficient 
to  repel  such  action,  to  disclose,  by  the  defendant's  plea,  the  person 
who  told  him  that  slander  ;  but  that  is  clearly  no  justification  ;  after 
putting  the  plaintiff  to  the  expense  of  bringing  the  action,  he  can 
only  impute  the  slander  to  the  person  who  utters  it,  if  the  latter  do 
not  mention  the  person  from  whom  he  heard  it.  The  justice  of  the 
case  also  falls  in  with  the  decisions  on  the  subject.  It  is  just,  that 
when  a  person  repeats  any  slander  against  another,  he  should,  at 
the  same  time,  declare  from  whom  he  heard  it,  in  order  that  the 
party  injured  may  sue  the  author  of  the  slander. 

So  (/),  where  the  defendant  said  of  the  plaintiff,  who 
had  been  ])roposed  as  a  volunteer  for  *the  defence  of  the  [  *833  ] 
country,  "  His  (the  plaintiff's)  character  is  infamous  ; 
he  would  be  disgraceful  to  any  society.  Whoever  proposed  him 
must  have  intended  it  as  an  insult.  I  will  pursue  him,  and  hunt 
him  from  all  society.  If  his  name  is  enrolled  in  the  Royal  Acadamy, 
I  will  cause  it  to  be  erased,  and  will  not  leave  a  stone  unturned  to 
publish  his  shame  and  infamy.  Delicacy  forbids  me  from  bringing 
a  direct  charge,  but  it  was  a  male  child  of  nine  years  old  who  com- 
plained to  me."  The  defendant  justified,  averring  that  a  male  child 
of  the  name  of  A.  B.,  of  the  age  stated,  did  complain  to  the  de- 
fendant of  an  unnatural  crime  before  that  time  committed  by  the 
plaintiff  upon  such  male  child.  Upon  demurrer,  it  was  observed  by 
the  court,  that  slanderous  words  can  in  no  case  be  justified  upon  the 
report  of  another,  unless  the  name  of  the  original  slanderer  be  given, 

(/)  Woolnoth  V.  Meadows,  5  East.  463. 

Vol.  I.  60 


833  CIVIL  REMEDY— OCCASION. 

at  the  time  ;  that  it  is  not  sufficient  to  disclose  the  name  for  the  first 
time  in  the  defendant's  plea  ;  that  the  object  of  the  rule  is  to  give  the 
injured  person  a  certain  cause  of  action  against  some  one.  But  that, 
in  the  principal  case,  no  action  could  have  been  maintained  on  those 
■words  against  the  boy  ;  whereas,  if  the  defendant  had  named  the 
boy  at  the  time,  and   repeated  truly  what  he  had  said  to  him,  the 

plaintiff  would  have  had  his  action  against  the  boy. 
[  *384  ]         *And  for   the  same  reason,  the  repeater  of  slander 

must  give  the  very  words  used  by  the  author  ;  for  the 
plaintiff,  to  maintain  his  action,  must  state  the  very  words  used  by 
the  defendant,  and  prove  them  as  stated  ;  so  that  unless  the  defend- 
ant faithfully  repeat  the  original  slander,  the  plaintiff  will  not  be 
put  in  possession  of  a  certain  cause  of  action. 

The  defendant  ((7),  in  a  written  affidavit,  deposed  to  words 
spoken  by  a  third  person  concerning  the  plaintiff:^,  who  were  mer- 
chants; and,  after  stating  the  words  used  by  the  third  person,  add- 
ed, "  or  words  to  that  purport  and  effect."  The  defendants  justi- 
fied, stating,  that  they  did  hear  the  third  person  publicly  declare  to 
the  effect  following  ;  and  then  proceeded  to  state  the  communication 
deposed  to,  on  which  the  action  had  been  brought.  To  this  justi- 
fication the  plaintiff  demurred  upon  several  grounds  ;  and  the  court, 
in  giving  judgment  for  the  plaintiffs,  observed,  that  "  at  all  events, 
in  order  to  justify  the  parties  reviving  the  slander  by  naming  the 
original  author  of  it,  they  must  so  disclose  the  matter  as  to  give  the 
plaintiff  a  certain  cause  of  action  against  the  party  named.  Now 
here  they  only  stat6  that  the  other  uttered  such  words,  or  to  that 
effect;  and  if  the  defendants,  when  called    as  witnesses  to  support 

the  action  against  the  author,  could  only  prove  that  he 
[  *835  ]     *uttered  words  to  the  effect  of  those  set  forth,  that  would 

not  be  sufficient. 
In  Maitland  and  others  (i)  against  Goldney  and  others,  one 
ground  of  the  plaintiff's  action,  as  stated  in  the  declaration,  was, 
that  the  defendants  had  published  the  slander  of  another,  well  know- 
ing that  other  to  have  retracted  his  opinion  of  the  plaintiffs,  and  to 
have  confessed  his  error.     Upon  demurrer,  it  was  not  argued  for 

ig)  2  East.  425.  (i)  2  East.  425. 


MALICE  IN  FACT.  335 

the  defendants  that  an  action  does  not  lie  for  publishing  slander 
originalij  uttered  by  another,  after  knowledge  by  the  defendant  that 
it  was  untrue,  but  an  objection  was  taken  to  the  mode  of  pleading. 

In  giving  judgment  on  demurrer,  it  was  observed  by  Lord  Ellen- 
borough,  C.  J.  that  "  In  order  to  maintain  this  species  of  action,  it 
is  necessary  that  there  should  be  malice  in  the  defendant,  and  aa 
injury  to  the  plaintiff,  and  that  the  words  should  be  untrue.  By 
the  lirst  count,  the  charge  in  substance  against  the  defendants  is, 
that  they  revived  and  published  an  injurious  report  of  the  plaintiff 
which  had  been  made  by  another  person,  who  was  afterwards  con- 
vinced that  he  had  uttered  the  words  hastily  and  rashly,  and  that 
the  defendants  did  this  with  a  full  knowledge  of  all  those  circum- 
stances. All  the  several  allegations  of  the  previous 
reports,  the  subsequent  *explanation  of  the  plaintiff's  [  *336  ] 
conduct  to  Guy  (7c),  his  satisfaction  with  it,  and  the  de- 
fendant's knowledge  of  it,  are  so  interwoven  by  the  pleading  with 
the  publication  of  the  libel,  that  they  could  not  be  severed  from  it ; 
so  that  the  plaintiffs  could  not  sustain  that  count  by  proof  of  the 
publication  alone,  without  such  explanatory  circumstances.  The 
plaintiffs  could  not  entitle  themselves  to  recover  unless  all  were 
proved.  The  count  then  contains  a  charge  against  the  defendants, 
that  they  published  the  slander  with  a  knowledge  that  the  person  who 
had  originally  uttered  it  was  satisfied  that  it  was  untrue.  The  fact, 
therefore,  of  such  previous  uttering,  was  merely  used  by  the  defend- 
ants as  a  pretence  for  publishing  the  same  slander ;  that  shews  mal- 
ice in  the  defendants,  and  an  injury  to  the  plaintiffs."  Judgment 
was,  however,  given  for  the  plaintiffs,  not  on  the  ground  of  legal 
malice  being  attributable  to  the  defendants,  but  because  they  had 
repeated  the  effect  of  the  dander,  and  not  the  very  words. 

In  the  case  of  Gerrard  v.  Dickenson  (I'),  it  was  held,  that  slan- 
der spoken  by  the  defendant  against  his  own  knowledge,  made  him 
liable  at  all  events,  and  deprived  him  of  the  benefit  of  his  justifi- 
cation. 

In  the  case  of  M'Gregor  v.  Thivaites  {m'),  it  *v;a,s  [  *337  ] 
held,  that   where   offensive  but   not  actionable   words, 

(4)  The  author  of  the  slander.  (/)  4  Coke  18.  b.        (m)  3  B.  and  C.  24. 


337  CIVIL  REMEDY— OCCASION. 

spoken  by  one  person,  were  ■written  and  then  published  by  another, 
it  was  no  defence  to  an  action  against  the  latter  for  a  libel,  that  the 
publication  revealed  the  name  of  the  author,  for  as  the  original 
words  were  not  actionable,  as  spoken,  the  defendant  had  not  afford- 
ed the  plaintiff  any  cause  of  action  against  any  other  person  ;  and, 
therefore,  as  the  words,  when  reduced  to  writing,  were  clearly  libel- 
lous and  actionable,  and  no  action  could  be  maintained  against  any 
one  but  the  defendant,  he  was  necessarily  responsible. 

And  in  the  case  of  Lewis  v.  Walter  (n),  the  defendant  pleaded 
that  the  alleged  libel  was  originally  published  in  the  Hants  Journal 
by  S.  H.  M.  and  W.  H. ;  that  the  defendant,  at  the  time  of  his 
publishing  the  alleged  libel,  did  also  publish  that  the  supposed  libel- 
lous matter  was  copied  and  quoted  from  the  said  last  mentioned 
public  paper  (The  Hants  Journal),  and  that  the  said  S.  H.  M. 
and  W.  H.,  had  made  and  delivered  an  affidavit,  pursuant  to  the 
statute,  making  oath  that  they  were  the  publishers  of  the  last  men- 
tioned paper.  This  plea  was  held  to  be  bad  (on  demurrer) ion  the 
ground  that  the  defendant  had  not  disclosed  the  names  of  the  pub- 
lishers of  the  original  paper  at  the  time  when  he  published  the  libel. 
*And  it  was  held  that,  admitting  that  such  a  defence 
[  *3S8  ]  could  be  pleaded  in  bar  at  all,  it  could  only  be  in  a  case 
where  the  defendant  had  originally  given  up  the  author 
by  name,  and  where  the  name  is  sufficient  to  identify  the  party. 
The  court,  however,  intimated  considerable  doubts  whether  Lord 
Northampton's  case  extended  to  justify  any  repetition  of  slander, 
except  on  a  fair  and  reasonable  occasion. 

Alihough  it  be  true  that  the  principal  authority  for  the  doctrine  of 
justification  by  hearsay,  is  the  extra-judicial  resolution  in  Lord 
Northampton's  case,  yet  the  statutes  of  scandalum  magnatum  afford 
a  strong  reason  for  supposing  that  this  was  once  the  general  law  of 
the  land.  Those  statutes  have  been  regarded  as  declaratory  of  the 
common  law,  and  it  seems  to  be  clear,  from  their  language,  that  in 
all  cases  within  their  scope,  the  propagator  of  scandalum  magna- 
tum, was  to  be  imprisoned  no  longer  than  until  he  should  have  dis- 
covered the  author  of  the  scandal  (o).     Now,  if  such  were  the  law, 

(n)  4  B.  and  A.  605,  (o)  Supra,   176. 


MALICE  IN  FACT.  338 

even  where  the  slander  affected  men  of  the  highest  rank  and  dignity 
in  the  realm,  it  is  not  very  easy  to  suppose  that  a  stricter  rule  would 
be  applied  where  the  slander  affected  subjects  of  inferior  degree  and 
consequence. 

*If  the  question  be  still  open  to  consideration,  there 
can  be  little  doubt  in  what  way  it  ought  to  be  decided  in     [  *339  ] 
point  of  principle. 

It  is  difficult  to  carry  the  doctrine  of  exculpation  from  hearsay 
further  than  this,  that  one  who  ho7id  fide  repeats  scandal,  which  he 
has  heard  from  the  mouth  of  another,  for  the  purpose  of  enabUng 
an  innocent  party  who  has  been  calumniated,  to  take  measures  for  re- 
dressino-  the  grievance,  shall  not  be  liable  to  an  action.  It  is  obvi- 
ous, that  if  a  man  malevolently  give  a  wide  circulation  to  slan- 
der, under  the  mere  colour  and  pretence  of  rendering  friendly  aid 
and  assistance  to  the  party  calumniated,  he  stands  in  no  situation 
which  entitles  him  to  legal  protection  ;  and  consequently,  as  the  act 
is  in  its  own  nature  injurious,  there  is  nothing  to  exempt  him  from 
the  ordinary  rule,  which  obliges  the  propagator  of  a  scandalous  re- 
port, attended  with  actual  or  presumptive  damage,  to  make  compen- 
sation (p). 

Were  such  a  justification  to  be  an  absolute  and  peremptory  bar 
to  the  action,  it  might  be  in  the  power  of  any  two  ill-disposed  persons 
to  slander  a  third  with  impunity.  If  A.  were  to  impute  felony  or 
any  other  crime  to  M.,  in  the  presence  of  B.,  and  B. 
were  to  impute  the  same  offence  to  *M.  in  the  presence  [  *340  ] 
of  A.,  and  each  were  then  to  publish  generally  that  he 
had  heard  such  slander  reported  by  the  other,  M.  would  be  without 
remedy  against  either ;  if  he  brought  his  action  against  A.,  then  A. 
would  prove,  that  he  did  in  fact  hear  the  charge  from  B.;  if  he  sued 
B.  a  similar  defence  would  also  succeed  [1]. 

(p)  See  Mr.  Borthwick's  Observations,  Law  of  Libel,  p.  291,  297. 

[1]  It  is  undeniable  that  at  the  time  of  the  publication  of  the  second  English 
edition  of  this  work  (i.  e.  in  1830),  it  was  and  still  is  the  law  of  England,  that 
an  action  will  not  lie  against  a  party  for  oral  slander ^  if  at  the  time  of  speaking 
the  words,  he  gives  the  name  of  the  author  of  the  slanderous  charge.  This  is 
manifest  from  the  cases  of  Davis  v.  Lewis,  7  T.  R.  17,  and  Maitland  v.  Goldney, 
3  East.  426,  and  indeed,  from  the  purport  of  this  whole  chapter,  although  the 


840  CIVIL  REMEDY— OCCASION. 

learned  author  struggled  hard  to  give  a  different  complexion  to  the  subject. 
The  rule,  as  it  prevailed  in  England,  was  adopted  in  its  full  extent  in  South- 
Carolina,  in  the  case  of  Miller  v.  Kerr,  2  McCord's  R.  285.  In  Pennsylvania 
it  was  at  first  held  XhdX  giving  vp  the  author  was  prima  facie  a  good  defence  ;  but 
allowing  ihe  presumption  of  innocence  to  be  rebutted  by  proof  of  malice,  Binns  v. 
McCorkle,  2  P.  A.  Brown's  R.  79,  and  Hersh  v.  Ringwalt,  3  Yeates  508.  This 
doctrine  was  subsequently  modified  in  that  stale,  by  allowing  the  defendant  in 
mitigation  of  damages  to  prove  that  what  he  had  uttered,  he  had  been  told  by 
another,  although  the  author  of  the  slander  was  not  named  at  the  time  of  the 
speaking  of  the  words,  Kennedy  v.  Gregory,  1  Binney  85,  and  by  permitting  it 
to  be  proved  that  the  defendant  had  not  devised  the  slander,  but  that  it  was 
found  among  the  papers  of  his  predecessor  in  a  printing  establishment,  Morris 
V.  Duane,  1  Binney  90,  n.  In  Connecticut  it  was  held  when  the  question  first 
arose  there,  that  giving  the  name  of  the  author  at  the  time  of  the  speaking  of 
the  words  was  available  in  mitigation  of  damages,  Leister  v.  Smith,  2  Root 
24  ;  but  subsequently  it  was  held  that  such  evidence  ought  not  to  be  received, 
even  in  mitigation,  Austin  v.  Hanchett,  2  Root  148 ;  and  Treat  v.  Browning  and 
wife,  4  Conn.  R.  408. 

In  1813,  the  case  of  Dole  v.  Lyon,  10  Johns.  R.  447,  came  before  the  supreme 
court  of  the  state  of  New- York  for  adjudication.  It  was  an  action  for  a  Ubel 
published  by  the  defendant,  in  which  he  gave  the  name  of  the  author,  viz-  one 
G.  D.  Young.  The  plaintiff  recovered  a  verdict,  and  the  defendant  asked 
for  a  new  trial,  on  the  ground  among  others,  that  having  given  the  name 
of  the  author,  he  was  not  liable  to  an  action.  Chief  Justice  Kent  pro- 
nounced the  judgment  of  the  court.  After  adverting  to  the  rule  laid  down  in 
the  Earl  of  Northampton's  case,  12  Co.  132,  and  in  Davis  v.  Lewis,  7  T.  R.  17, 
he  observed  that  in  neither  of  those  cases  was  that  rule  the  point  in  judgment, 
and  proceeded,  "  It  may  well  be  questioned  whether  this  rule,  even  as  to  slan- 
derous loords,  ought  not  to  depend  upon  the  quo  animo  with  which  the  words 
with  the  name  of  the  author  are  repeated.  Words  of  slander,  with  the  name 
of  the  author,  may  be  repeated  with  a  malicious  intent,  and  with  mischievous 
effect.  The  public  may  be  ignorant  of  the  worthlessness  of  the  original  author, 
and  may  be  led  to  attach  credit  to  his  name  and  slander,  when  both  are  men- 
tioned by  a  person  of  undoubted  reputation.  There  is  however  a  distinction  be- 
tween ORAL  and  WRITTEN  or  PRINTED  SLANDER,  which  is  noliccd  in  all  the  books  ; 
and  the  latter  is  deemed  much  more  pernicious,  and  will  not  so  easily  admit  of 
justification.  There  is  no  precedent  of  such  a  justification  in  an  action  for  a  libel. 
He  concludes  his  opinion  upon  this  part  of  the  casein  these  words  :  "  Individu- 
al character  must  be  protected,  or  social  happiness  and  domestic  peace  are 
destroyed.  It  is  not  sufficient  that  the  printer,  by  naming  the  author  gives  the 
party  grieved  an  action  against  him.  This  reason  of  the  rule  is  mentioned  in 
Lord  Northampton's  case,  and  repeated  by  Lord  Kenyan.  But  this  remedy  may 
afford  no  consolation  and  no  relief  to  the  injured  party.     The  author  may  be 


MALICE  IN  FACT.  340 

some  vagrant  individual,  who  may  easily  elude  process  ;  and  if  found,  he  may 
be  without  properly  to  remunerate  in  damages.  It  would  be  no  check  on  a 
libellous  printer  who  can  spread  the  calumny  with  ease  and  rapidity  throughout 
the  community.  The  calumny  of  the  author  would  fall  harmless  to  the  ground, 
without  the  aid  of  the  printer.  The  injury  is  inflicted  by  the  press,  which  like 
other  powerful  engines,  is  mighty  for  mischief  as  well  as  for  good.  1  am  satis- 
fied that  the  proposition  contended  for  on  the  part  of  the  defendant,  is  as  desti- 
tute of  foundation  in  law,  as  it  is  repugnant  to  principles  of  public  policy." 
A  new  trial  was  denied.  This  case  may  be  considered  as  having  settled  the  law 
in  New- York,  that  giving  the  name  of  the  author  is  no  bar  to  any  action  for  the 
re-publication  of  a  libel;  and  in  the  subsequent  cases  of  Mapes  v.  Weeks,  4 
Wendell  659,  and  Inman  v.  Foster,  8  Id.  602,  it  was  adjudged  in  the  same 
state  that  evidence  that  the  defendant  had  been  told  by  another  what  he  had 
uttered  against  the  plaintiff  was  inadmissible  as  well  m  mitigation  of  damages 
as  in  bar  of  a  recovery.  In  1803,  the  supreme  court  of  Pennsylvania,  in  Runkle 
V.  Meyer,  3  Yeates  518,  advanced  the  doctrine  subsequently  held  in  Dole  v. 
Lyon,  that  giving  the  name  of  the  author  of  a  libel  was  no  justification  ;  but 
added  that  the  evidence  was  admissible  in  mitigation  of  damages. 

In  1821,  Lord  C.  J.  Abbott  and  Best,  J.  in  the  case  of  Lewis  v.  Walter,  4 
Barn,  and  Aid  Gil,  expressed  their  doubts  whether  the  resolution  contained  in 
the  Earl  of  Northampton'' s  case,  was  applicable  to  written  slander,  Holroyd 
J.  insisted  that  even  in  respect  to  oral  slander,  a  defendant  under  the  rule  in  the 
Earl  of  Norlhamp:on's  case  was  not  justifiable,  unless  the  words  were  spoken, 
(in  repetition)  on  a,  fair  and  justifiable  occasion  :  in  which  opinion  Best,  J.  con- 
curred, observing  that  it  was  justifiable  to  repeat  the  slander  only  when  done 
for  some  fair  and  reasonable  cause  :  thus  assenting  in  1821,  to  the  doctrine  laid 
down  by  Chief  Justice  Kent  in  1813.  In  1829,  however,  the  question  as  to 
this  defence  in  case  of  written  slander,  was  fully  settled  in  the  King's  Bench  in 
Da  Crespigny  v.  Wellesly,  5  Bingham  392.  To  a  declaration  for  a  libel,  the 
defendant  pleaded  that  the  matter  alleged  as  libellous,  was  delivered  to  him  in  a 
written  statement  by  a  third  person,  and  that  at  the  time  of  the  publication,  he 
gave  the  name  of  such  person.  The  plaintiff  demurred.  Best,  then  Chief 
Justice,  delivered  the  opinion  of  the  court,  that  such  a  justification  cannot  be 
f  leaded  to  an  action  for  the  republication  of  a  libel ;  and  at  the  same  time  entered 
2l  protestando  in  behalf  of  the  couit,  against  being  considered  as  admitting  that 
even  in  oral  slander,  a  party  may  plead  that  what  he  had  related  had  been  told 
to  him  by  a  third  person,  and  that  at  the  time  of  speaking  the  words  he  named 
such  third  person. 


CHAPTER   XV. 


Op  tke  Process  and  Pleadings. 

[  *341  ]         *Next  are  to  be  considered  the  means  appointed  by 
law  for  obtaining  such  damages  where  the  party  is  enti- 
tled to  them ;  and  the  means  of  defence  where  a  party  sues  who 
is  not  so  entitled. 

The  division  of  these  proceedings  is  naturally  suggested  by  the 
order  in  which  they  occur  in  point  of  time,  and  consist  of  the  pro- 
cess, pleadings,  trial,  judgment,  and  writs  of  error ;  to  which  may 
be  added,  the  writ  of  prohibition. 

OF   THE   process. 

The  action  to  recover  damages  fcr  slander,  whether  oral  or  writ- 
ten, is  an  action  on  the  case  ;  in  which,  since  the  damages  are  un- 
certain, the  party  cannot  be  held  to  bail  without  a  special  order  of 
the  court,  or  of  a  judge,  on  a  full  affidavit  of  the  circumstances  (a), 
and  no  instance  appears  in  the  books  in  which  such  an  order,  in  a 
common  case,  has  been  granted.  Even  in  an  action  of 
[  *342  ]  scandalum  magnatum,  the  *court  has  denied  an  applica- 
tion for  good  bail ;  in  the  Marquis  of  Dorchester's 
case  (5)  the  defendant  agreed  to  put  in  bail  to  the  amount  of  £50. 

In  the  Earl  of  Macclesfield's  case  (c),  the  plaintiff  desired  that 
the  defendant  might  put  in  special  bail ;  but  the  court  could  not 

(a)  1  Tidd.  P.  150.  ed.  4.  (b)  2  Mod.  215.  (c)  3  Mod.  41. 


DECLARATION— VENUE.  342 

grant  it,  and  said,  it  was  a  discretionary  thing,  and  not  to  be  de- 
manded of  right.  [1]. 

And  it  seems  that  the  court  will,  in  no  case,  allow  special  bail, 
unless  affidavit  be  made  of  the  words  spoken  (c?). 

It  is  next  to  be  considered  what  there  is  peculiar  to  the  pleadings 
in  an  action  for  slander:  Observations  upon  ^he  declaration  relate 
to  the  venue,  the  parties,  the  averments,  and  the  joinder  of  different 
counts. 

FIRST,  TO   THE  VENUE. 

In  general,  the  venue  in  an  action  of  this  nature  may  be  changed 
upon  the  usual  affidavit,  where  that  affidavit  can  be  made  with  pro- 
priety. But  where  (e)  a  libel,  written  or  printed  in  one  county,  is 
circulated  in  others,  the  court  will  not  change  the  venue  to  the  first; 
for,  as  every  publication  is  a  fresh  offence,  the  defendant 
•cannot  swear  that  the  cause  of  action  was  confined  to  [  *343  ] 
any  one  county  (/) . 

But  where  a  libel  is  written  in  one  place,  and  sent  to  another  in 
the  same  county,  the  court  will  change  the  venue  (^)  if  it  be  laid 
in  a  different  county  [2j. 

(d)  3  Mod.  41. 

(e)  Hoskins  v.  Ridgway,  PI.  23  G.  3.  K.  B.  Pinkney  v.  Collins,  1  T.  R. 
571.     1  Wils.  178.     1  T.  R.  647. 

(/)  Clissold  V.  Clissold,  1  T.  R.  647.  1  Wils.  178.  Tiie  court  refused  to 
change  the  venue  from  London  to  Worcester,  an  affidavit  being  made  that  the 
letter  was  written  at  Stafford,  because  it  bore  the  post-mark  of  that  place  ;  the 
putting  the  letter  into  the  post-office,  at  Stafford,  being  prima  facie  evidence 
that  it  was  written  there.     Hitchon  v.  Best,  1  B.  &  B.  299. 

{g)  Freeman  v.  Norris,  3  T.  R.  306. 

[1]  In  Clason  v.  Gould,  2  Gaines  R.  47,  the  defendant  who  had  been  arrested 
in  an  action  for  a  libel  in  which  a  judge's  order  to  hold  to  bail  had  been  obtain- 
ed, was  discharged  on  the  ground  that  the  affidavit  to  hold  to  bail  did  not  show- 
any  sfecial  cause  to  justify  the  order  ;  which  the  court  said  must  be  done  to 
entitle  the  plaintiff  in  such  action  to  hold  to  bail.  In  Van  Vechten  v.  Hopkins, 
2  Johns.  293,  it  was  held  sufficient  to  hold  the  defendant  to  bail  that  he  was 
a  transient  person,  residing  out  of  the  state,  and  a  motion  for  his  discharge  was 
accordingly  denied. 

[I]  In  New-York,  actions  of  slander,  written  and  unwritten,  are  directed  by 
statute,  2  R.  S.  409,  §  2,  to  be  tried  in  the  county  where  the  venue  is-laid.  unless 

Vol.  I.  51 


348  CIVIL  REMEDY. 

So,  where  the  libel  is  written  in  one  county  and  published  in  Ger- 

manj,  the  defendant  may  change  the  venue,  upon  an  affidavit  that 

the  cause  of  action  arose  in  that  county,  and  not  elsewhere  in  this 
kingdom  (Ji'). 

And  in  the  case  of  Freeman  v.  Norris  (^'),  the  distinction  was 
recognized  between  libels  dispersed  throughout  the  kingdom  and 
those  which  are  published  in  one  county  only. 

So  that,  where  the  libel  is  printed  in  one  county  and  published  in 
a  second,  the  venue,  if  laid  in  the  second,  cannot  be  changed ;  for 
the  publication  in  the  latter  county,  is  the  act  of  the  defendant,  and 
he  cannot  make  the  usual  affidavit  (y). 

But  the  court  will  otherwise  change   the  venue  where  special 
ground  is  laid. 
[  *344  ]         *As  if  the  defendant  cannot  have  a  fair  trial  in  the 
original  county  (Jc). 

But  in  an  action  for  scandalum  magnatum,  it  seems  the  venue 
cannot  be  changed  upon  the  usual  affidavit ;  and  the  reason  assigned 
is,  that  the  scandal  raised  of  a  peer  of  the  realm  reflects  upon  him 
throughout  the  kingdom  (J), 

In  the  case  of  Lord  Shaftesbury  above  alluded  to,  the  venue  was 
changed  on  the  ground  that  the  defendant  could  not  have  a  fair  trial 
in  London,  where  the  venue  is  laid. 

In  the  Marquis  of  Dorchester's  case  (m),  on  a  motion  to  chano-e 
the  venue,  which  had  been  laid  in  London,  Pemberton,  Serj.  shewed 
cause  against  the  motion. 

1st.  Because  the  king  was  a  party  to  the  suit ;  for  it  is, 

2ndly.  Because  the  plaintiff  was  a  lord  of  parliament,  where  his 
services  would  be  required.  North,  C.  J.  was  of  opinion  that  the 
venue  could  not  be  changed,  as  the  proceeding  was  in  the  nature  of 
an  information.     But  Atkins,  J.  inclined  to  think  that  the  venue 

the  court  deem  it  necessary  for  the  convenience  of  parties  and  their  witnesses, 
or  for  the  purposes  of  a  fair  and  impartial  trial,  to  order  the  actions  tried  in 
some  other  county. 

{h)  3  T.  R.  652.     Metcalf  v.  Markham.  (i)  3  T.  R.  306. 

{j)  Hitchon  v.  Best,  1  B.  &  B.  299. 

{h)  Lord  Shaftbury's  case,  1  Vent.  364. 

(/)  GU.  C.  P.  90.  ^»»)  2  Mod.  216. 


DECLARATION— VENUE.  344 

mif^ht  be  changed  ;  but  the  court  not  agreeing,  the  defendant  con- 
sented that  the  cause  should  bo  tried  in  London,  and  the  venue  was 
not  changed. 

*But  it  seems  that  generally,  unless  special  ground     [  •345  ] 
be  laid  for  changing  it,  the  plaintiff  in  scandalum  magna- 
tum  may  retain  his  venue  (w). 

Formerly,  in  actions  for  slander  as  well  as  in  others,  where  a  local 
justification  was  pleaded,  the  courts  observed  great  nicety  in  requir- 
ing the  venire  to  be  awarded,  not  only  from  the  county,  but  the 
very  place  which  the  justification,  as  stated  in  the  plea,  arose.  The 
reasons  for  this  were,  indeed,  frequently  stronger  in  these  actions 
than  in  other  instances,  since  where  the  truth  of  a  criminal  charge 
is  pleaded  in  justification,  the  issue  partakes  of  the  nature  of  a 
criminal  process  ;  and  it  is  said,  that  upon  its  being  found  against 
the  plaintiff,  he  is  liable  to  be  tried  by  a  petty  jury  without  further 

inquest. 

In  the  case  of  Ford  v,  Brooke  (o),  which  was  an  action  for  call- 
ing the  plaintiff  a  perjured  person  at  D.  in  Essex ;  the  defendant 
justified,  averring  that  the  defendant  had  perjured  himself  at  West- 
minster, in  the  county  of  I^liddlesex ;  the  plaintiff  replied,  de  in- 
juria, &c.  and  the  court  awarded  the  venire  to  be  directed  to  the 
sheriff  of  Middlesex. 

So,  in  an  action  for  calliiig  the  plaintiff  a  thief,  at  Dale,  in  Essex, 
the  defendant  pleaded  that  the  plaintiff  had  committed  a 
robbery  at  Sale,  in  the  *same  county  ;  and  issue  being  [  *346  ] 
joined  upon  that  fact,  the  court  awarded  the  venire  from 
Sale  (p).  And  a  misdirection  of  the  venire  was  a  good  ground  for 
arresting  or  setting  aside  the  judgment,  though  the  court  would,  in 
such  case,  award  a  new  venire.  But  the  law  upon  this  point  is 
altered  by  the  statutes  16  &  17  C.  2.  c.  8.  and  4  Ann.  c.  16.  s.  6  ; 
the  former  of  which  enacts  that,  after  verdict,  no  judgment  shall  be 
arrested  or  reversed,  for  that  there  is  no  right  venue,  so  as  the 
cause  of  action  were  tried  by  a  jury  of  the  proper  county  or  place 

(n)  Duke  of  Norfolk  v.  Anderton,  2.Salk.  668.  I  Lev.  56.  307.  1  Vent.  364. 

(o)  Cro.  Eliz.  261. 

(p)  Clerk  V.  James,  Cro.  Eliz.  870,     See  also  Bowyer's  case,  Cro.  Ehz. 


346  CIVIL  REMEDY. 

■where  the  action  was  laid  :  and  the  latter  directs  that  the  venire 
shall  be  awarded  out  of  the  body  of  the  county  -where  such  issue  is 
triable  (5). 

la  Craft  v.  Boite  (/),  the  words  were,  "  Look,  there  is  a  thiev- 
ish young  rogue,  he  hath  stolen  X200.  worth  of  plate  out  of  Wad- 
ham  College,"  (meaning  Wadham  College,  in  the  University  of 
Oxford).  The  plaintiff  brought  his  action  in  London  ;  the  defend- 
ant justified  the  words,  because  he  said  that  the  plaintiff  at  Ox- 
ford, in  the  county  of  Oxford,  stole  certain  plate  out  of  Wadham 
College ;  the  plaintiff  pleaded  de  mjuria  ^c.  ;  and  the  issue  was 
tried  in  London,  where  the  plaintiff  had  a  verdict  with  £50  dam- 
ages. 
[  *347  ]  *Saunders,  for  the  plaintiff,  moved  in  arrest  of  judg- 
ment, on  the  ground  of  the  mistrial,  but  the  court 
(against  the  opinion  of  Twisd  n)  conceived  that  the  fault  was  cured 
by  the  statute  which  was  lately  passed  (s).  And  this,  which  ap- 
pears to  have  been  the  first  decision  under  the  act,  has  since  been 
acquiesced  in. 

NEXT,  AS   TO   THE   PARTIES. 

First  as  to  the  number  of  plaintiffs.  In  this  species  of  action, 
as  well  as  in  other  cases  of  tort,  two  or  more  may  join  where  their 
joint  interest  has  been  affected  by  the  act  of  the  defendant  (f). 
So  that,  Avhere  a  libel  reflects  upon  two  partners  in  their  trade, 
they  may  join  in  the  action  (11)  [a  a] .  But  unless  a  joint  interest 
be  affected,  several  actions  should  be  brought,  though  the  same 
words  be  spoken   or  libel  published  concerning  two  [1].      Thus, 

(q)  See  Serj.  William's  note,  2  Saund.  5. 

(r)  1  Saund.  241.  (s)   16  &  17  C.  2. 

(0  Weller  v.  Baker,  2  Wils.  423.  2  Williams'  Saund.  116.  a.  n.  2, 

(w)  Mailland  v.  Goldney,  2  East.  425.  3  Bos.  and  Pull.  150.  Cook  v. 
Batchelor,  Shepp.  Ac.  53.     Fosters.  Lawson,  3  Bingh.  452. 

[a  a]  An  allegation  ihat  words  were  spoken  concerning-  three  plaintiffs,  (part- 
ners) in  their  joint  trade,  is  not  supported  by  proof  that  they  were  addessed  to 
one  of  them  personally.     Solomons  v.  Medex,  1  Starkie's  C.  191. 

f  I]  In  Sumner  v.  Buel,  12  Johns.  R.  475,  it  was  held  by  a  majority  of  the 


DECLARATION— PARTIES.  347 

where  A.  says  to  B.  and  C,  "  You  have  murdered  D.,"  B  and 
C.  must  bring  several  actions,  not  a  jomt  one  (a;).  So 
it  seems,  *ihat  two  joint-tenants  or  coparceners  may  [  *o48  ] 
join  in  an  action  of  slander  of  their  title  to  the  es- 
tate :  for  as  it  must  be  shewn  in  the  declaration,  and  proved,  that 
the  plaintiffs  received  some  particular  damage,  by  reason  of  tho 
slander,  the  damage,  even  as  well  as  their  interest  in  the  estate, 
is  joint  (?/). 

So,  for  the  words  A.  or  B.  murdered  D.,  either  A.  or  B.  may 
being  a  separate  action  (2),    but   they   cannot  maintain  a  joint 

judges  of  the  Supreme  Court  of  New- York,  that  for  the  publication  of  a  libel 
against  the  officers  of  three  companies  of  a  regiment  of  militia  called  into  pub- 
lic service,  an  action  would  not  lie  at  the  suit  of  one  of  those  officers,  unless 
special  damage  was  alleged  and  proved.  Chief  Justice  Thompson  held  that 
when  the  libel  has  no  particular  and  personal  application  and  is  so  general  that 
no  individual  damage  can  be  presumed,  and  the  class  or  individuals  so  numerous 
to  whom  it  would  apply,  that  great  vexation  and  oppression  might  grow  out  of 
a  multiplicity  of  suits,  no  private  suit  can  be  sustained  ;  but  the  offender  must 
be  proceeded  against  by  indictment.  Spencer  and  Yates,  justices,  concurred. 
Van  Ness,  J.  dissented  and  delivered  an  opinion,  in  which  Platt,  J.  concurred. 
The  doctrine  of  Sumner  v.  Buel,  was  called  in  question  in  Ryckman  r.  Delavan, 
17  Wendell  52,  which  was  an  action  for  a  libel  affecting  the  business  of  the 
plaintiff  as  a  brewer  of  beer.  The  libel  charged  that  certain  malting  establish- 
ments on  the  hill  in  Albany,  were  supplied  with  water  from  stagnant  pools, 
gutters  and  ditches  for  the  purpose  of  carrying  on  the  business  of  malting,  &c. 
The  plaintiff  averred  that  he  had  a  malting  establishment  on  the  hill,  &c.  and 
that  to  injure  him  the  publication  was  made.  The  defendant  demurred,  and  the 
Supreme  Court  upon  the  strength  of  the  decision  of  Sumner  v.  Buel,  held  that 
the  action  did  not  lie  :  which  judgment  was  reserved  by  the  Court  for  the  Cor- 
rection of  errors.  See  23  Wendell  186  ;  the  latter  court  holding  that  an  action 
for  a  libel  may  be  sustained  by  an  individual  for  an  injury  to  his  business  result- 
ing from  a  libellous  publication,  although  it  affect  the  business  of  others  engaged 
in  the  same  calling,  unless  it  be  manifest  upon  the  face  of  the  publication  that 
the  charges  are  against  a  class  of  society,  a  profession,  an  order,  or  body  of 
men;  and  cannot,  by  possibility,  import  a  personal  application  tending  to  private 
injury. 

(X)  Smith  V.  Croker,  Cro.  Car.  512.  28  H.  8.  fol.  19.  Dyer,  Shepp.  Ac. 
63.     Deacon's  case. 

(y)  2  Will.  Saund.  117.  a.  {z)  10  Mod.  198. 


348  CIVIL  REMEDY. 

one  (a).  "Where  (5)  joint  actionable  words  are  spoken  of  a  hus- 
band and  wife,  the  tort  is  several,  and  the  husband  alone  may  bring 
the  action ;  but  the  wife  may,  in  such  case,  be  joined,  provided  the 
injury  be  laid  as  done  to  herself  [1]. 

The  case  of  words  spoken  of  the  wife  admits  of  three  varieties ; 

1st.  Where  the  words  are  not  actionable,  but  are  attended  with 
special  damage. 

2dly.  Actionable  without  special  damage. 

3dly.  Actionable  with  special  damage. 

In  the  first  case,  the  damage  resulting  to  the  husband  is  the  sole 

ground  of  action,  and  the  wife  must  not  be  joined.     As,  where  the 

action  is  brought  for  calling  the  wife  a  bawd,  per  quod  'the  husband 

lost  his  customers  (c).     And  to  join  the   wife  in  such 

[  *349  ]     case  would  be  bad  on  demurrer,  in  arrest  of  judgment, 

or  in  error  (df). 

But  secondly,  where  the  words  are  actionable,  and  no  special 
damage  is  laid,  the  wife  must  be  joined,  and  the  declaration  must 
conclude  ad  damnum  ipsorum,  for  there  the  action  survives ;  and 
she  must  be  joined  (e)  in  an  action  for  any  slander  published  of  her 
before  her  marriage  [2]. 

(a)  1  Roll.  Abr.  81.  (b)  Smith  v.  Croker,  Cro.  Car.  512. 

(c)  1  Lew.  140.     B.  N.  P.  7. 
'  {d)  Grove  v.  Hart,  Tr.  35  G.  2.     B.  N.  P.  7. 

(e)  3  T.  R.  627.  631.  Com.  Dig.  Bar.  and  Fem.  1  Sid.  387.  Ld.  Ray. 
1208.     Roll.  Ab.  347. 

[I]  See  Ebersoll  v.  King  and  wife,  3  Binney  555,  where  it  is  held  the  slander 
of  husband  and  wife,  cannot  be  joined  in  the  same  action. 

[2]  An  action  for  words  not  actionable  per  se,  spoken  of  the  wife  alleging 
special  damage,  must  be  brought  in  the  name  of  the  ^usianc?  alone;  but  for  words 
actionable  in  themselves,  spoken  of  her,  the  action  must  be  in  the  names  of  the 
husband  and  ivife,  although  they  live  apart  under  articles  of  separation,  Beach 
and  wife  v.  Ranney  and  wife,  2  Hill  309.  Where,  however,  an  action  was 
brought  by  the  wife  living  apart  from  her  husband  under  articles  of  separation, 
in  the  names  of  her  husband  and  herself,  for  slanderous  words  spoken  of  her,  it 
was  held  that  a  release  of  the  cause  of  action  executed  by  the  husband,  was  a 
good  bar  to  the  suit,  notwithstanding  that  in  the  articles,  the  husband  had  coven- 
anted that  suits  might  be  brought  in  iheir  joint  names,  for  any  injury  to  the  per- 
son, or  character,  &c.  of  the  wife.  Beach  and  wife  v.  Beach  and  wife,  2  Hill 
260. 


DECLARATION— PARTIES.  849 

But  thirdly,  where  the  words  spoken  of  the  wife  are  actionable, 
and  special  damage  has  accrued  in  consequence  to  the  husband, 
great  perplexity  has  arisen  on  the  question  whether  the  wife  should 
be  joined  or  omitted.     The  difficulty,  in  this  case,  proceeds  from  the 
circumstance  of  two  distinct  causes  of  action  being  involved  in  one 
and  the  same  transaction, — the  actionable  words  spoken  of  the  wife, 
and  the  special  damage  resulting  to  the  husband.     For  the  former, 
the  husband  is  not  entitled  to  damages  without  making  his  wife  a 
party,  and  the  cause  of  action  survives  to  her.     In  the  latter  case, 
the  loss  is  several,  and  peculiar  to  the  husband,  and  ought  not,  there- 
fore, to  be  stated  as  the  loss  of  both.     Accordingly,  where  the  hus- 
band has  brought  the  *action  alone,  it  has  been  contend- 
ed that  he  ought  to  have  joined  his  wife  in  respect  of  the     [  *350  ] 
actionable  words  spoken  of  her,  that  at  all  events  the  ac- 
tion would  survive  to  her,  and  therefore  that  the  defendant  would 
twice   make    compensation  for  the  same  injury.     And  in  similar 
cases,  when  the  wife  has  been  joined,  it  has  been  argued  that  the 
joint  action  was  improper,  since  the  special  damage  accrued. 

From  a  review  of  the  decisions  upon  this  point,  it  appears,  that 
the  wife  is  not  barred  by  the  husband's  action,  though  the  special 
damage  result  from  actionable  words  spoken  of  the  wife,  which  re- 
moves the  objection  to  a  separate  action,  in  which  he  alone  is  enti- 
tled to  recover  damages.  In  Guy  v.  Livesay  (^f),  the  husband 
alone  recovered  in  an  action  of  trespass  for  a  personal  injury  to  him- 
self, and  also  for  beating  his  wife,  by  means  of  which  he  lost  her  so- 
ciety for  three  days.  And  on  motion  in  arrest  of  judgment,  the 
court  held,  that  the  action  was  well  brought ;  for  the  action  was  not 
brought  in  respect  of  the  harm  done  to  the  feme,  but  for  the  partic- 
ular loss  of  the  husband,  for  that  he  lost  the  company  of  his  wife, 
which  was  only  a  damage  and  loss  to  himself,  for  which  he  should 
have  the  action,  as  the  master  should  have  for  the  loss  of  his  servant's 
service. 

*In  Young  v.  Pridd  (g'),  the  plaintiff  brought  trespass     [  *351  ] 
for  that  the  defendant  assaulted,  ill  treated,  and  carried 
away  his  wife,  and  detained  her  for  half  a  year,  by  means  of  which 
he  lost  the  comfort  and  society  which  he  should  otherwise  have  had 
(/)  Cro.  Jac.  501.  (g)  Cro.  Car.  89. 


S51  CIVIL  REMEDY. 

■with  his  said  wife.  After  verdict  and  judgment  for  the  plaintiff,  er- 
ror was  brought  in  the  Exchequer  Chamber,  and  assigned  that  the 
husband  had  brought  the  action  for  thn  battery  of  the  wife,  which 
he  could  not  do  without  his  wife,  and  had  recovered  damages  for  the 
battery,  and  therefore  that  the  judgment  was  erroneous.  But  all 
the  justices  and  barons  held,  that  the  husband  in  that  action  did  7iot 
recover  damages  for  the  battery  of  his  wife,  but  for  the  loss  which  he 
bad  in  wanting  her  company.  That  the  ijer  quod  consortium  amisit 
and  abduction  of  her  were  one  entire  conjoined  cause  of  action  for  which 
the  damages  were  given.  That  for  the  battery,  true  it  was  that  the 
wife  ought  to  have  joined  to  recover  damages,  and  that  the  verdict 
and  judgment  did  not  bar  the  wife  from  an  action,  after  the  death 
of  her  husband,  for  the  battery,  or  that  she  might  join  with  her  hus- 
band in  another  action.      And  judgment  was  affiimed[l] . 

*In  the  case  of  Smith  v.  Eixon  (A),  it  was  held  that 
[  *352  ]  the  husband  alone  might  maintain  an  action  for  the  ma- 
licious prosecution  of  the  wife,  by  means  of  which  he 
was  put  to  expense.  After  verdict  for  the  plaintiff,  upon  motion  in 
arrest  of  judgment,  grounded  on  the  omission  of  the  wife,  the 
court  said,  that  though  the  remedy  for  the  scandal  might  survive  to 
the  wife,  it  was  no  objection  to  the  husband's  action,  and  that  he 
might  undoubtedly  proceed  for  the  battery  of  the  wife,  per  quod 
consortium  amisit,  and  yet  the  action  for  the  beating  would  survive 
to  the  wife. 

From  these  cases  it  appears,  that  the  husband  may  separately 
maintain  an  action  for  the  damage  resulting  to  himself,  from  a  per- 
sonal injury  offered  to  the  wife,  for  which  personal  injury  ihey  might 
have  maintained  a  joint  action  and  that  the  right  of  action  would 
survive  to  the  wife  for  the  independent  injury  done  to  herself.  The 
case  of  actionable  words  spoken  of  the  wife,  producing  special  dam- 

(h)  Str.  977.  See  also  Hyde  v.  Seyssor,  8  Mod.  26.  Cro.  J.  538.  Fort.  377. 
Cro.  J.  6C4. 

[1]  In  Cowden  v.  Wright,  24  Wendell  429,  which  was  an  action  by  the  father 
for  assaulting  and  beating  his  son  per  quod  servitium  amisit ;  the  Supreme  Court 
reversed  a  judgment  because  the  jury  in  the  C.  P.  had  been  charged  that  in  esti- 
mating the  damages  they  might  take  into  account  the  wounded  feelings  of  the 
parents,  in  consequence  of  the  beating  of  the  son,  .^y.v, 


DECLARATION— PARTIES.  352 

age  to  the  husband,  seems  to  be,  in  all  respects,  perfectly  analo- 
gous  to  those  cited ;  and  on  their   authority  it  may  be  concluded, 
that  a  husband,  for  such  words,  or  rather  for  the  damage 
resulting  from  them,  may  sue  without  his  wife.       *And  it     [  *353  ] 
seems  to  be  highly  reasonable  that  the  husband,  in  respect 
of  the   special   damage,   should   be  entitled  to  a  separate  action. 
In  case  the  words  had  not  been  intrinsically  actionable,  the  husband 
must  have  sued  alone  ;  and  it  can  scarcely  be  contended  that  the 
injurious  quality  of  the  words  can  compel  him  to  alter  the  nature  of 
the  proceeding,  to  recover  for  the  separate  tort  to  himself,  the  only 
alteration  in  the  case  consisting  in  the  additional  mischief  to  the  wife. 
As  the  injuries  are  completely  distinct,  there  seems  no  reason  why 
the  remedies  should  not  be  equally  independent.      A  contrary  sup- 
position would  involve  this  absurdity,  that  by  the  increased  virulence 
of  the  words,t  he  plaintiflf  would  be  placed  in  a  worse  situation  as  to 
his  remedy,  since,  in  case  of  actionable  words,  his  title  to  damages 
would  become  dependent  upon  the  life  of  his  wife,  and  would  be  ex- 
tinguished by  her  dying  before  judgment  recovered. 

Where,  on  the  contrary,  the  words  spoken  of  the  wife  are  intrin- 
sically actionable,  the  husband  is  not  entitled  to  recover  in  a  joint 
action,  in  respect  of  any  mere  consequential  damage  to  himself.  la 
such  a  case,  therefore,  where  the  husband  and  wife  join,  it  would  be 
improper  to  allege  such  consequential  damage.  The 
error,  however,  would  be  aided  by  a  special  *verdict,  [  *354  ] 
which  excluded  the  consequential  damage  and  confined 
the  damages  to  the  detriment  sustained  by  the  wife  (i). 

(i)  2  Mod.  66.  1  Lev.  3.  2  Lev.  101.  Com.  Dig.  Pleader,  C.  87,  In  the 
case  of  Russell  v.  Corne.  1  Salk.  119.  Holt,  R.  699.  6  Mod.  127.  The  hus- 
band and  wife  brought  trespass  and  false  imprisonment  for  the  imprisonment  of 
the  wife,  by  means  of  which  the  domestic  affairs  of  the  husband  remained  un- 
done, to  the  damage  of  both.  After  verdict  for  the  plaintiff,  it  was  moved,  in 
arrest  of  judgment,  that  the  business  of  the  husband  remaining  undone,  could 
not  be  to  the  damage  of  the  wife,  and  that  for  such  damage  the  husband  ought 
to  have  brought  the  action  alone.  But  it  was  answered,  that  the  action  being 
well  brought  and  conceived  for  the  imprisonment,  what  came  under  the  per  quod 
could  only  be  taken  in  aggravation,  as  if  words  in  themselves  actionable  be  spo- 
ken of  a  wife  and  the  husband  and  wife  bring  the  action,  and  conclude  per  quod, 

Vol.  I.  52 


864  CIVIL  REMEDY. 


NEXT  AS   TO   THE  JOINDER   OF   SEVERAL  DEFENDANTS. 

Where  the  •wrongful  act  is  the  joint  act  of  two  or  more,  the  plain- 
tiff may  proceed  against  them  in  one  and  the  same  action  ;  as, 
where  the  slander  is  contained  in  affidavits  made  by 
[  *355  ]  two,  *but  so  connected  as  to  form  one  slanderous 
char  ge  (Jc)  [1] . 

But  where  two  persons  speak  the  same  words,  the  plaintiff  must 
bring  separate  actions,  for  the  acts  are  several  in  their  nature,  and 
the  tort  of  one  is  not  the  tort  of  the  other. 

The  defendants  said  to  the  plaintiff  (Z),  "  Thou  hast  the  plate  of 
J.  S.,  and  we  charge  thee  with  that  felony."  After  verdict  for  the 
plaintiff,  in  an  action  against  both,  judgment  was  arrested.  And 
the  case  of  an  action  for  mere  slander  differs  in  this  respect  from 
an  action  for  charging  the  plaintiff  with  felony,  and  procuring  him 
to  be  indicted  ;  for,  in  the  latter,  the  act  of  the  defendants  may  be 
joint,  and  the  plaintiff  may  proceed  against  them  in  the  same  ac- 
tion (wi). 

Though  the  husband  and  wife  speak  the  same  words,  the  plaintiff 
must  bring  different  actions,  and  the  court  will  not  permit  them  to 
be  consolidated,  for  it  would  be  error  to  join  the  wife  for  words 
spoken  by  the  husband  only,  and  the  declaration  (?i)  would  be  ill 
either  upon  demurrer  or  in  arrest  of  judgment. 

But  where,  in  an  action  against  husband  and  wife  for  speaking 

&c.  the  husband  lost  his  customers,  it  would  be  well,  for  the  words  being  in 
themselves  actionable,  the  per  quod  should  be  taken  in  aggravation,  all  which 
the  court  allowed. 

But  Lee,  C.  J.  is  reported  to  have  said  (Str.  1094),  "  In  a  manuscript  note 
which  I  have  seen  of  this  case  in  Salkeld,  Holt,  C.  J.  says,  '  I  will  not  intend 
that  the  judge  suffered  the  husband's  business  remaining  undone  to  be  given  in 
evidence.'  " 

(/c)  2  East.  426. 

(Z)  Cro.  Jac.  647.  {m)  B.  N.  P.  5. 

(n)  Swithen  and  his  Wife  v.  Vincent  and  his  Wife,  2  Wils.  227.  Subly  v. 
Mott,  B.  N.  P.  5. 

[1]  To  the  same  effect  see  Thomas  v.  Rumsey,  6  'Johns.  R.  27,  Harris  v. 
Huntington,  2  Tyler,  147,  and  Patten  v.  Gurney,  17  Mass.  R.  182. 


DECLARATION— INDUCEMENT.  356 

of  the  plaintiff  certain  'scandalous  ^Yords,  the  jury  found     [  *356  ] 
the  husband  guilty,  and  the  wife  not  guilty,  the  plain- 
tiff  had  judgment;   for    though   the    action  ought  not   to  have 
been  brought  against  both,  and  the  declaration  would  have  been 
held  ill  on  demurrer,  yet  the  verdict  cures  the  error  (o). 

Counts  for  oral  and  written  slander  may  be  joined  in  the  same 
declaration  (p) ,  so  a  count  for  slander  may  be  joined  with  one  for  a 
malicious  prosecution  Qq). 

OF  THE  AVERMENTS. 

The  declaration  in  this,  as  well  as  in  every  other  action,  consists 
of  a  clear  and  technical  statement  of  the  facts  necessary  to  sup- 
port the  complainant's  suit ;  so  that  they  may  be  understood  by  the 
party  who  is  to  answer  them,  by  the  jury  who  are  to  ascertain  the 
truth  of  the  allegations,  by  the  court  who  are  to  give  judgment  upon 
them  (r)  and  that  the  parties  may  afterwards  avail  themselves  of 
the  judgment  (s). 

*It  has  been  at  all  times  the  fashion  to  preface  the  [  *357  ] 
legal  enunciation  of  the  plaintiff's  case  with  a  prelimin- 
ary panegyric  upon  his  character ;  this  is  superfluous,  since  it 
does  not  affect  the  gist  and  essence  of  the  action.  A  man  of  bad 
character  is  not  to  be  represented  as  worse  than  he  really  is,  and 
therefore  is  entitled  to  a  compensation,  to  be  measured  by  the  excess 
of  the  scandal  beyond  what  is  really  due  to  him.  In  one  instance 
(0,  indeed,  it  appears  that  the  plaintiff's  announcing  himself  to  be 
of  good  fame,  tempted  the  defendant  to  plead,  that  at  the  time  of 
publishing  the  words  the  plaintiff  was  not  of  good  fama  ;  but  the 
plea  was  held  to  be  bad,  since  it  answered  matter  of  inducement 
which  did  not  require  any  answer . 

In  a  modern  case,  the  plaintiff,  in  an  action  for  a  libel,  imputing 

(o)  1  Roll,  Abr.  281.  (o)  pi.  1  Sty.  349.   Com.  Dig.  Pleader,  c.  87. 

(p)  King  V.  Waring,  5  Esp.  C.  13. 

(5';  Manning  v.  Fitzherbert,  Cro.  Car.  271. 

(r)  Cowp.  682.  Com.  Dig.  Pleader,  C.  P.  17.  Co.  Lilt.  383.  2  B.  &  P.  267. 

(5)  3  M.  &  S.  116.  (0  Strachey's  case,  Sty.  118. 


357  CIYIL  REMEDY. 

to  him  seditious  principles,  prefaced  his  declaration  "with  a  boast  of 
the  uniform  loyalty  of  his  conduct ;  it  appeared  that  he  had  been 
some  time  in  confinement  under  the  sentence  of  the  court,  for  pub- 
lishing a  seditious  libel ;  and  the  Lord  Chief  Justice  (it)  animad- 
verted on  the  impropriety  and  absurdity  of  such  a  preamble. 

The  allegations  relate  to  the  act  of  publication,  the  matter  pub- 
lished, the  application  of  the  matter  published,  the  motive 
[  'SoS  ]     *in  publishing,  and  to  the  damage  occasioned  by  it. 
First,  as  to  the  act  of  publication. 
This  is  either  of  a  libel,  or  of  oral  slander. 
In  the  case  of  a  libel,  it  appears  that  a  publication  in  effect  must 
be  stated,  though  no  particular  form  of  words  is  required.     In  the 
case  of  Baldwin  v.  Elphinstone  (a;),  it  was  assigned  for  error,  that 
in  the  second  count  the  defendant  was   charged  with  having  printed 
the  libel,  and  having  caused  it  to  be  printed  in   the  St.  James's 
Chronicle,  but  was  not  charged  with  having  published  it.     After 
argument  in  the  Exchequer  Chamber,  the  Justices  and  Barons  were 
all  of  opinion  that  the  judgment  ought  to  be  affirmed.     That  there 
are  various  modes  of  publication,  and  no  technical  words  are  neces- 
sary to  describe  it ;  that  it  is  sufficient  if  there  be  stated  in  the  de- 
claration such  matter  as  amounts  to  a  publication  without  using  the 
formal  term  published,  and  the  jury  are  upon  the  evidence  to  decide 
whether  a  publication  be  sufficiently  proved  or  not.     That  printing 
a  libel  may  be  an  innocent  act,  but  unless  qualified  by  circumstan- 
ces, ^hsUii  prima  facie  be  understood  to  be  a  publishing :    it  must  be 
deUvered  to  the  compositor  and  other  subordinate  work- 
[  *359  ]     men.     That  *|rinting  in  a  neivspaper  admits  no  doubt 
upon  the  face  of  it.     The  court  further  observed,  "  It  is 
stated  that  he  caused  to  be  printed."     This  confirms  the  fact  of 
publication,  because  it  calls  in  a  third  person  as  agent,  to  whom  the 
libel  must  have  been  communicated.     In  short,  the  count  does  not 
state  generally,  as  it  might  have  done,  that  the  libel  was  published, 
but  it  expresses  the  particular  mode  of  publication,  viz :  in  a  news- 
paper.    It  thereby  puts  the  publication  in  issue,  and  the  jury  have 
round  it  so. 

(m)  Lord  EUenborough,  C.  J.  (i)  2  Bl.  R.  1037. 


DECLARATION— PUBLICATION.  359 

It  must  be  observed,  that  this  was  after  verdict,  which  was  relied 
upon  by  the  court,  and  probably  the  declaration  would  have  been 
considered  to  be  defective  upon  special  demurrer,  for  not  stating  a 
publication  in  more  expUcit  terms. 

In  this  case,  too,  great  stress  was  laid  upon  the  circumstance  that 
the  defendant  had  caused  the  libel  to  be  i)Vin\.e([  m  a,  neivspaper ; 
had  the  allegation  been  simply,  that  the  defendant  printed  and 
caused  to  be  printed  the  libel  in  question,  it  would  have  been  difficult 
to  have  construed  it  into  an  averment  that  he  published,  for  a  man 
may  print,  and  therefore  cause  to  be  printed,  without  the  aid  or 
privity  of  others. 

The  term  published  is  the  proper  and  technical  term  to  be  used 
in  the  case  of  libel,  without  reference  to  the  precise  degree  in  which 
the  defendant  has  been  instrumental  to  such  publication ; 
Vrnce,  if  he  has  intentionally  lent  his  assistance  to  its     [  *360  ] 
existence  for  the  purpose  of  being  published,  his  instru- 
mentality is  evidence  to  show  a  publication  by  him  (?/). 

In  a  declaration  for  words  spoken,  it  is  sufficient  to  aver  that  the 
defendant  spoke  in  the  presence  (s)  of  divers  persons,  without  alleg- 
ing that  those  present  either  heard  or  understood  them,  and  it  will 
be  intended  that  they  did  hear  and  understand  the  words  till  the 
contrary  appear. 

But  it  would  be  insufficient  to  aver  that  the  words  were  spoken, 
without  stating  them  to  have  been  spoken  in  the  presence  of  some 
one  (a),  or  without  some  averment  which  necessarily  implied  a  pub- 
lication to  a  third  person,  as  that  the  defendant  j^aZaw  etpuhUd  (6) 
promulgavit  de  querente. 

It  has  been  doubted  whether  it  be  sufficient  to  lay  the  words  to 
have  been  spoken  under  a  ciimque  etiam,  by  way  of  recital  ((?)  ; 
but  in  the  case  of  Mors  v.  Thacker  (d),  it  was  decided, 
that  such  an  allegation  in  an  action  on  the  case  is  *good,     [  *361  ] 
though  (as  was  said)  it  would  be  otherwise  in  trespass . 

{y)  Lamb's  case,  9  Rep. 

(z)  Cro.     E     480.     Noy  57.    Golds.  119.    Cro.  J.  39.     Cro.  Car.  199. 

(a)  Sly.  70. 

(&)  Cro.  Eliz.  861.  (c)  2  Mod.  41.  (rf)  2  Lev.  193. 


361  CIVIL  REMEDY. 

If  the  words  be  spoken  in  a  foreign  language,  an  averment  is 
necessary  to  shew  that  the  hearers  understood  them  (e)  ;  and  even 
where  Welsh  words  were  averred  to  have  been  spoken  in  Monmouth- 
shire, which  once  was  part  of  Wales,  judgment  was  arrested  after 
verdict  for  the  plaintiflf,  because  it  was  not  averred  that  they  were 
spoken  before  Welshmen,  or  those  who  understood  the  Welsh 
tongue  (/). 

In  the  King  v.  Brereton  (^),  the  indictment  stated  that  the  de- 
fendant "  Scripsit  fecit  et  publicavU  seu  scribl  fecit  et  puhlicari 
causavit."  And  judgment  was  arrested  on  account  of  the  uncer- 
tainty of  the  disjunctive  charge  ;  and  in  a  civil  proceeding,  such  an 
averment  would  probably  be  considered  defective,  if  pointed  out  by 
a  special  demurrer. 

Next  as  to  the  publication  of  the  illegal  matter. 

The  words  are  either  intrinsically  actionable,  or  they  derive  their 
illegality  from  collateral  circumstances ;  it  is  therefore  necessary  to 
inquire,  in  the  first  place,  how  the  mere  words  themselves  are  to  be 
stated  and  connected  with  the  plaintiff ;  and  secondly, 
[  *362  ]  where  they  are  not  *in  themselves  actionable,  how  they 
are  to  be  connected  with  the  collateral  facts  from  which 
their  actionable  quality  is  derived. 

First,  as  to  the  statement  of  the  mere  words  :  it  has  long  been 
settled,  that  the  declaration  or  indictment  must  profess  to  set  out 
the  very  words  published,  and  that  it  is  not  sufficient  to  describe 
them  by  their  sense,  substance,  and  effect. 

It  seems  (/i)  formerly  to.  have  been  held  to  be  sufficient  to  set 
out  the  words,  not  in  English,  as  they  were  delivered,  but  in  the 
Latin  language  ;  the  permitting  which  clearly  recognized  the  propri- 
ety of  a  substantial,  in  contradistinction  to  an  actual  and  precise 
statement  of  the  very  expressions  used,  since  in  many  instances  it 

(e)  Cro.  E.  396.     Cro.  E.  865.  (/)  Cro.  Eliz.  865. 

(5-)  8  Mod.  328. 

{h)  See  Hugh  Pyne's  case,  Cro.  Car.  117,  which  was  submitted  to  all  the 
judges  for  their  opinion,  when  many  indictments  for  uttering  traitorous  and 
seditious  words  were  cited,  in  many  of  which  nothing  more  than  the  Latin 
ttanslation  was  set  out. 


STATEMENT  OF  THE  WORDS.  362 

would  be  impossible  to  render  the  expressions  used  into  Latin  ones 
perfectly  synonymous. 

And  it  appears  (i)  to  have  been  the  opinion  of  Holt,  C.  J.  in  Dr. 
Drake's  case,  that  the  libel  might  have  been  set  forth  in  the  infor- 
mation in  Latin,  in  -which  case  a  variance,  which  did  not  change  the 
sense,  would  not  vitiate  it. 

*No  argument  can,  however,  be  drawn  from  this  [  *363  ] 
source,  in  support  of  a  substantial,  in  opposition  to  a 
precise  statement,  the  doctrine  having  been  virtually  overruled  ; 
for  if  it  was  sufficient  to  set  out  a  Latin  translation  whilst  the  pro- 
ceedings were  drawn  in  Latin,  it  would,  on  the  same  principle,  after 
the  passing  of  the  statutes  (Z;)  which  direct  the  English  to  be  sub- 
stituted for  the  Latin  language  in  all  legal  proceedings,  have  been 
sufficient  to  set  out  a  libel  published  in  French  or  Italian  merely  by 
an  English  translation.  But  in  the  case  of  Zenohio  v.  AxtelKJ), 
judgment  was  arrested,  because  a  libel  published  in  French  had  not 
been  set  out  in  the  original  language,  but  was  merely  described  by 
way  of  translation.  And  Lord  Kenyon,  C.  J.  upon  that  occasion 
observed,  that  from  the  uniform  current  of  proceedings  it  appeared 
that  the  original  words  should  be  set  forth  with  an  English  transla- 
tion, showing  their  application  to  the  plaintiff. 

In  the  case  of  the  Queen  v.  Dr  Drake  (wz).  Holt,  C.  J.  is  re- 
ported to  have  said,  "  A  libel  may  be  described  either  by  the  sense 
or  by  the  ivords  ;"  but  by  the  Chief  Justice's  application  of  this 
doctrine,  it  appears  that  he  did  not  mean  that  a  mere 
description  of  the  words  by  their  *effect  would  be  suffi-  [  *364  ] 
cient ;  for  he  observes,  "  A  libel  may  be  described  either 
by  the  sense  or  by  the  words  of  it,  and  therefore  an  information^ 
charging  that  the  defendant  made  a  writing  containing  such  Avords, 
is  good,  and  in  that  case  a  nice  exactness  is  not  required,  because 
it  is  only  a  description  of  the  sense  and  substance  of  the  libel ;  and 
if  the  jury  find  some  omissions,  it  will  be  sufficient  if  so7ne  ivords 
he  proved.''     The  latter  expression,  "  if  some  words  be  proved," 

(i)  Holt.  R.  351. 

(k)  2  G.  2.  c.  2.  and  6  G.  2.  c.  14.  (Z)  6  T.  R.  162. 

(m)  3  Salk  224.     Holt  R.  347.  349.  350.  425.     11  Mod.  95 


364  CIVIL  REMEDY. 

clearly  evinces  that  the  very  -words,  and  not  merely  their  efifect, 
were  to  be  set  out ;  and  that  his  lordship  meant  to  say,  not  that  it 
is  unnecessary  to  state  the  words,  but  that  they  may  be  stated  two 
ways,  either  by  their  tenor,  in  which  case  the  pleader  undertakes  to 
set  out  the  words  with  the  greatest  precision,  and  the  libel  given  in 
evidence  must  agree  exactly  with  the  one  set  out  in  the  information, 
or  by  stating  that  the  defendant  made  a  writing  containing  inter  alia 
the  words  set  out,  in  which  case  it  would  be  necessary  to  set  out 
those  only  which  are  material,  and  a  variance  would  not  be  fatal, 
unless  the  sense  were  altered. 

In  the  case  of  Newton  v.  Stuhhs  (w),  the  action  was  brought  for 

words  spoken,  which  were  set  out  in  the   declaration  ad 

[  *365  ]     tenorem  et  effectum  sequentum  ;  "  *and  after  verdict  for 

the  plaintiff,  judgment  was  arrested,  because  it  was  not 

expressly  alleged  that  the  defendant  spoke  the  very  words. 

In  the  case  of  the  King  v.  Bear  (o),  the  indictment  was  for 
composing,  writing,  making,  and  collecting  several  libels  in  uno  quo- 
rum continetur  inter  alia  juxta  tenorem,  et  ad  effectum  sequentem, 
and  the  words  were  then  set  out. 

And  it  was  agreed  that  ad  effectum  would  of  itself  have  been 
bad,  since  the  court  must  judge  of  the  words  themselves^  and  not  of 
the  construction  the  prosecutor  puts  upon  them,  but  that  the  words 
juxta  tenorem  sequentem  import  the  very  words  themselves  (o). 
And  it  was  held,  that  the  words  "  ad  effectum  "  were  loose  and  use- 
less words;  but  that  the  vfor^s  Juxta  tenorem  being  of  a  more  cer- 
tain and  strict  signification,  the  force  of  the  latter  was  not  hurt  by 
the  former,  according  to  the  maxim  "  utile  per  inutile  non  vitiatur.'* 

In  the  same  case,  that  of  Ford  v.  Bennett  (p),  was  referred  to, 
where,  in  a  special  action  upon  the  case  against  Bennett  and  others, 
the  plaintiff  declared  that  the  defendants,  at  Saltashe,  procured  a 
false  and  scandalous  libel  against  the  plaintiff  to  be  written  under 
the  form  of  a  petition,  and  the  *libel  was  set  forth  after 
[  *366  ]  the  word  continetur  ad  tenorem  et  ad  effectum  sequen- 
tem. Two  were  found  guilty,  upon  which  judgment  was 
entered  for  the  plaintiff,  and  afterwards,  upon  error  brought  in  the 

(n)  3  Mod.  71.  (o)  2  Salk.  417.  (p)  1  Lord  Ray.  415. 


STATEMENT  OF  THE  WORDS.  366 

Exchequer,  the  judgment  was  affirmed,  the  exception  taken  to  the 
words  ad  effectum  having  been  overruled  without  consideration. 
And  Holt,  C.  J.  said,  that  he  then  thought  the  judgment  to  be  given 
with  too  great  precipitation  ;  but  he  afterwards,  upon  great  consider- 
ation, had  esteemed  it  to  be  very  good  law.  And  the  King  v.  Fid- 
ler{ci) ,  and  the  King  v.  Youngir) ,  were  cited  as  authorities  in  point ; 
and  the  whole  court  were  of  opinion,  that  notwithstanding  the  excep- 
tion, the  indictment  was  good  ;  but  that  if  it  had  been  only  ad  effec- 
tum sequentem,  it  had  been  ill,  because  it  had  not  imported  that 
the  words  were  the  specific  words  which  were  in  the  libel. 

In  the  above  case  of  the  Queen  v.  Drake  (s),  a  distinction  was 
taken  between  an  action  for  libel  and  one  for  words,  and  that  in  the 
latter  case  it  would  be  sufficient  to  find  the  substance  [1].  But  in 
case  of  words  spoken,  as  well  as  written,  it  has  been  held 
to  be  necessary  to  set  out  the  words  *themselves,  and  [  *367  ] 
that  it  is  insufficient  to  aver  that  the  defendant  spoke 
these  words  vel  his  similia  (f)  [2] . 

In  Dr.  Sacheverell's  case,  the  defendant  having  been  impeached 
for  preaching  several  sermons,  the  question  arose,  whether  the  ob- 
jectionable parts  ought  not  to  have  been  set  out  on  the  face  of  the 
impeachment ;  and  it  was  proposed  to  all  the  judges,  whether,  by  the 
law  of  England  and  constant  practice  in  all  prosecutions  by  indict- 
ment or  information,  for  crimes  and  misdemeanors,  by  writing  or 
speaking,  the  particular  words  supposed  to  be  criminal  must  not  be 
expressly  specified  in  such  indictment  or  information  ;  and  the  judg- 
es present  unanimously  answered  the  whole  of  this  proposition  in  the 
affirmative  (u) 

(q)  Mich.  4  W.  &  M. 

(r)  Mich.  4  W.  &  M.  (5)  Holt.  R.  348.  350. 

(0  Cro.  J.  159.  1  Vra.  Ab.  53:J.  pi.  1.  Br.  Ac.  sur.  le.  cas.  pi.  112.  4  Ed. 
6.  4T.  R.  217. 

[1]  In  an  action  for  words  it  is  sufficient  to  prove  the  substance  of  the  words 
laid  in  the  declaration,  Miller  v.  Miller,  8  Johns.  R.  74.  See  also  Kennedy  v. 
Lowry,  1  Binney  393  ;  Kyzer  v.  Grabbs,  2  McCord  305  ;  Key  v.  Otis,  8  Mass. 

R.  132. 

[2]  In  Bell  v.  Bugg,  4  Munf.  260,  a  declaration  charging  the  defendant  with 
having  spoken  certain  words  or  words  of  the  same  import  held  good  after  verdict. 

{u)9  St.  Tr.  Ann.     Bat  the  Lords,  notwithstanding  this  opinion  of  the  jndg- 

VOL.   I.  53  . 


368  CIVIL  REMEDY— DECLARATION. 

In  the  case  of   Coohe  v.    Cox  (x)  it  was  held  that  a 
[  *368  ]     *count  which  alleged  that  the  defendant  had  falsely  and 

maliciously  charged  and  asserted,  and  accused  the  plain- 
tiff (a  tradesman)  of  being  in  bad  and  insolvent  circumstances,  was 
bad  in  arrest  of  judgment ;  and  the  court  came  to  this  decision,  upon 
a  review  of  all  the  former  authorities,  and  relied  particularly  on  the 
opinion  given  by  the  judges,  in  Sacheverell's  case.  And  the  court 
intimated,  that  there  was  no  difference  in  this  respect,  between  crim- 
inal cases  and  civil  ones,  where  the  action  arises  ex  delicto.  And 
again,  in  Wright  v.  Clements  (?/),  where  the  declaration  stated, 
that  the  defendant  published  a  libel,  containing  false  and  scandalous 
matter  concerning  the  plaintiff,  in  substance  as  follows;  and  then 
set  out  the  libel  A\ith  innuendoes,  the  judgment,  after  a  verdict  for 
the  plaintiff,  was  arrested. 

Where  the  words  have  been  spoken,  or  libel  published  in  a  for- 
eign language,  they  must  be  set  out  in  the  original  language,  or  the 

declaration  will  be  bad  in  arrest  of  judgment  (z).  But, 
[  *369  ]      *it  seems,   that   an   English   translation  ought  to   be 

added  [1]. 

es,  resolved,  that  they  would  determine  the  impeachment  according  to  the  law 
of  the  land,  and  the  law  and  usage  of  parliament ;  and  that,  according  to 
the  law  and  usage  of  parliament,  it  was  not  necessary  in  prosecutions  by  im- 
peachment for  high  crimes  and  misdemeanors,  by  speaking  or  writing,  to  spec- 
ify the  particular  words  supposed  to  be  criminal. 

(ar)  3  M.  &  S.  110.  So  in  Wood  v.  Brown,  6  Tauat.  169,  it  was  held,  that 
to  allege  that  the  defendant  had  published  a  libel,  purporting  that  the  plaintiff's 
beer  was  of  bad  quality,  was  bad  on  demurrer. 

It  was  observed,  by  the  court,  in  the  case  of  Cooke  v.  Cox,  above  cited,  that 
what  was  supposed  to  have  been  said  by  Lord  Hardwicke,  in  Nelson  v.  Dixie, 
Cas.  temp.  Hardw.  105,  was  founded  in  a  mistake. 

(2/)  3  B.  &  A.  503. 

(z)  Zenobia  v.  Axtell,  6  T.  R.  162.  3  M.  &  S.  116.  But  in  an  anonymous 
case,  Hobart  126,  the  plaintiff  declared  against  the  defendant  for  calling  him 
Idoner  in  the  Welsh  tongue,  and  had  judgment,  although  he  did  not  aver  that 
the  word  amounted  to  a  charge  of  forgery  ;  and  the  case  was  cited,  in  which  the 
plaintiff  had  judgment  for  the  words,  "  Thou  art  a  healer  of  felons,"  without 
any  averment  how  the  words  were  taken  ;  because  the  court  were  informed,  and 
took  notice  that  in  some  counties  the  term  healer  was  understood  to  mean  a 
smotherer  or  coverer  of  felons. 

[1]  In  Wormouth  v.  Cramer,  3  Wendell  394,  the  slanderous  words  were  set 


STATEMENT  OF  THE  WORDS.  369 

It  is  next  to  be  considered  with  what  degree  of  particularity  and 
certainty  the  words  or  libel  must  be  averred. 

First,  in  the  case  of  oral  slander. 

It  has  been  said  (a),  that  the  strictness  formerly  observed  as  to 
proving  the  words  precisely  as  laid,  has  been  abandoned,  and  that 
it  is  sufficient  to  prove  the  substance  of  them ;  but,  at  the  present 
day,  it  seems  to  be  requisite  to  prove  some  of  the  words,  though 
not  all,  as  tUey  are  laid  e'Ven  in  the  case  of  oral  slander. 

If  the  slander  (F)  be  contained  in  words  of  interrogation,  it  must 
be  so  laid,  and  must  not  be  averred  to  have  been  spoken  affirmative- 

*In  the  case  of  the  Lady  Raddiffe  v.  Shubly,  (c)  [  *o70  ] 
the  words  laid  in  the  declaration  were,  "  She  is  as  very 
a  thiefe  as  any  that  robbeth  by  the  highway  side."  The  jury 
found  that  the  defendant  spoke  these  words,  "  She  is  a  worse  thief 
than  any  that  robbeth  by  the  highway  side."  And  Wary,  C.  J. 
was  of  opinion,  that  "  as  very  a  thief,"  and  "  a  worse  thief,"  are 
all  one  ;  but  Gawdy  and  Fenner,  justices,  ruled  that  the  words  did 
not  agree  with  the  declaration. 

So,  an  indictment  for  speaking  these  words  of  a  magistrate  (c?) , 
"  He  is  a  broken  down  justice,"  is  not  satisfied  by  evidence  of  the 
words,  "  You  are  a  broken  down  justice."  Lord  Kenyou,  indeed, 
in  this  case,  held  at  nisi  prius,  that  it  was  sufficient  to  prove  the 
substance  of  the  words  stated,  and  the  defendant  was  found  guilty  ; 
but  the  point  was  reserved,  in  order  that  a  verdict  of  acquittal 
might  be  entered,  in  case  the  court  should  be  of  a  different  opinion. 
On  motion  to  that  effect,  Buller,  J.  said,  that  there  was  a  case  in 
Strange,  in  support  of  his  lordship's  opinion,  but  that  it  had  since 

forth  in  the  declaration  in  English;  it  was  proved  they  were  spoken  in  German, 
and  were  understood  by  the  bystanders.  The  plaintiff  was  non-suited,  and  the 
court  refused  to  grant  a  new  trial,  holding  that  the  proper  mode  of  declaring  in 
such  cases  is  to  state  the  words  in  the  foreign  language,  to  aver  that  they  were 
understood  by  those  who  heard  them,  and  to  give  their  signification  in  English. 

(a)  B.  N.  P.  5  cites  2  Roil.  Ab.  18.  a.     Avarillot;.  Rogers,  T.  T.  1773. 

(/))  2  East.  434.     8  T.  R.  150.     4  T.  R.  217. 

(c)  Cro.  Eliz.  224.     But  see  Dyer  75. 

(d)  R  V.  Berry,  4  T.  R.  217.     Blisset  v.  Johnson,  Cro.  Eliz.  503,  contra. 


370  CIVIL  REMEDY— DECLARATION. 

been  overruled  in  Lord  Mansfield's  time,  and  that  he  himself  had 
known  a  variety  of  nonsuits  on  the  same  objection  ;  and  judgment 

was  given  fur  the  defendant  [1]. 
[  *371  ]  *So,  where  A.  (e)  says  of  B.  and  C.  "  You  have 

committed  such  an  offence,"  though  B.  and  C.  may  have 
separate  actions,  each  must  state  the  words  to  have  been  spoken 
of  both. 

So,  where  the  words  are  spoken  (/^ironically,  they  must  be 
stated  as  spoken,  with  an  averment  that  they  were  spoken  iron- 
ically. 

Where  the  declaration  stated  these  words  of  the  plaintiff,  "  He 
stole  a  sheep  of  his,"  (innuendo  of  the  defendant)  it  was  moved 
in  arrest  of  judgment,  that  his  must  refer  to  the  last  antecedent, 
and  so  that  the  words  were  repugnant,  for  a  man  cannot  steal  his 
own  sheep  ((/)  ;  but  the  objection  was  overruled. 

Upon  the  authority,  however,  of  more  recent  cases,  it  seems  the 
variance  between  the  words  his,  as  used  in  the  declaration,  and  mine 
as  proved  in  evidence,  would  be  a  ground  of  non-suit. 

Where  the  words  laid  in  the  declaration,  as  spoken  of  a  surveyor, 
were,  "  Harrison  is  a  scoundrel ;  if  I  would  have  found  him  an  oven 
for  nothing,  and  given  him  after  the  rate  of  <£20  per  cent,  upon  the 
amount  of  the  charges  for  work  and  materials,  he  would 
[  *372  ]  have  passed  my  account."  *The  first  witness  called  for 
the  plaintiff  proved  these  words  :  "  Harrison  is  a  scoun- 
drel ;  and  if  I  had  allowed  £20  per  cent,  he  would  have  passed 
my  account."  The  second  witness  proved  the  words,  "  Harrison  is 
a  scoundrel ;  and  if  I  had  deducted  X20  per  cent,  he  would  have 
passed  my  account." 

Lord  EUenborough,  C.  J.  said,  that  words  to  be  actionable,  should 
be  unequivocally  so,  and  be  proved  as  laid  ;  but  that,  as  the  words 

(e)  Cro.  Ca..  512.  (/)  11  Mod.  86.  (g)  8  Mod.  30. 

fl]  Proof  of  words  spoken  in  the  second  person  will  not  support  a  declaration 
alleging  the  speaking  to  have  been  in  the  third  person,  McConnell  v.  McCoy, 
7  Serg.  &  Rawle  223  :  so  held  on  the  strength  of  the  decision  of  Lord  Mans- 
field in  Avarillo  v.  Rogers,  Bull.  N.  P.  5,  See  also  Miller  v.  Miller,  8  Johns. 
R.  74. 


STATEMENT  OF  THE  WORDS.  372 

were  proved,  they  did  not  support  the  declaration.  The  words  of 
the  declaration  were,  "  If  he  would  give  me  .£20  per  cent."  that 
might  mean  something  to  himself,  by  which  he  would  be  himself  ben- 
efited to  the  prejudice  of  his  employer,  but  the  words  proved  were, 
"  If  he  would  allow,"  or  "  if  he  would  deduct  £20  per  cent." 
These  words  might  import  an  allowance  or  deduction  from  the  plain- 
tiff's bill  for  the  benefit  of  his  employer,  and  were  of  a  different 
meaning  and  import." 

Where  the  words  alleged  in  the  declaration  were,  "  This  is  my 
umbrella,  he  stole  it  from  my  back  door,"  and  the  words  proved 
were,  "  It  is  my  umbrella^  tf-e."  and  it  appeared  that  the  words 
were  not  spoken  in  the  house  where  the  umbrella  then  was,  it  was 
held,  that  the  variance  was  fatal ;  for  the  words,  as  laid,  imported 
to  have  been  spoken  concerning  a  thing  prestnt^  those 
proved  *were  spoken  concerning  a  thing  not  present  at  [  *373  ] 
the  time  (i). 

Where  the  words  were  spoken  in  answer  to  a  question,  and  the 
injurious  meaning  is  to  be  collected  not  merely  from  the  terms  of  the 
answer,  but  from  the  question  and  answer  together,  the  words  must 
not  be  laid  as  a  substantive  and  affirmative  proposition,  but  accord- 
ing to  the  fact  (Jc).  If  the  defendant  has  not  made  an  assertion  as 
his  own,  but  has  merely  alleged  that  some  other  person  had  reported 
the  fact,  it  must  be  so  averred,  and  if  it  were  to  be  averred  substan- 
tively, that  the  defendant  had  reported  the  fact,  the  variance  would 
be  fatal  (/)  ;  for  the  charge  is  different,  and  open  to  a  different  de- 
fence. Where  the  declaration  laid  the  words  as  follows,  "  A.'s  wife 
is  a  great  thief,  and  ought  to  have  been  transported  years  ago  ;" 
and  the  words  proved  were,  "  A.'s  wife  is  a  bad  one,  and  ought, 
&c."  it  was  held,  that  the  words  were  misdescribed  ;  the  words  laid 
imputed  an  act,  those  proved,  suspicion  only  (m). 

And  variance  may  consist  either  in  the  addition  or  omission  of 
one  or  more  words,  or  in   the  substitution  of  one  word  for  another. 
First,  in  the  addition. 

(i)  Walters  v.  Mace,  2  B.  &  A.  756. 

{k)  See  Bromage  v.  Prosser,  4  B.  &  C.  247. 

(I)  Bell  V.  Byrne,  13  East.  554.       {m)  Hancock  v.  Winter,  2  M.  &  S.  502. 


374  CIVIL  REMEDY— DECLARATION. 

[  *374  ]  *It  is  not  necessary,  in  case  of  oral  slander,  to  prove 
all  the  words,  provided  such  of  them  be  proved  as  are 
material  [1]. 

The  plaintiff  declared  that  the  defendant  said  of  him,  "  He  is  a 
maintainor  of  thieves,  and  a  strong  thief."  The  jury  found  the 
whole  to  have  been  said  except  the  word  strong,  and  it  was  adjudg- 
ed for  the  plaintiff  (w)  [a  a] . 

And  even  where  special  damage  is  the  gist  of  the  action,  it  is 
sufficient  to  show  that  the  loss  was  sustained  in  consequence  of  any 
of  the  words  laid  ii^  the  declaration  (o). 

But  if  all  the  words,  as  laid,  constitute  but  one  charge,  the  whole 
must  be  proved. 

The  declaration  stated  that  the  defendant  said  of  the  plaintiff, 
"  He  is  selling  his  coals  at  one  shilling  a  bushel,  to  pocket  tho 
money,  and  become  a  bankrupt  to  cheat  his  creditors."  Upon  the 
trial,  the  words  "  and  become  a  bankrupt,"  were  not  proved,  and 
the  plaintiff  was  nonsuited  (p). 

And  the  reason  applies  with  equal  force  in  the  case  of  libel, 
where  the  addition  of  a  word  not  proved  would  be  fatal,  if  it  at  all 

(n)  Burgis's  case,  Dyer  75. 

[a  a\  Where  the  words  laid  in  the  declaration  were,  "  1  will  do  my  best 
to  transport  him,  as  he  has  been  working  for  me  some  time,  and  has  been 
robbing  me  all  the  while,"  the  proof  was  of  the  words,  "  he  was  worked  for 
me  some  time,  and  has  been  continually  robbing  me  ;"  it  was  held  that  the 
variance  was  not  material.  It  was  also  held  that  the  circumstance  of  the  words 
having  been  spoken  to  an  officer,  who  had  a  warrant  to  search  the  plaintiff's 
house  for  goods  suspected  to  have  been  stolen  from  the  defendant,  made  no 
difference,     Doncaster  v.  Hewson,  2  M.  and  R.  176. 

In  another  case  in  which  the  words  laid  in  the  declaration  were,  "  Ware- 
hawk,  you  must  take  care  of  yourself  there,  mind  what  you  are  about,"  and  were 
alleged  to  have  been  spoken  to  a  person  about  to  supply  the  plaintiff  with  goods, 
it  was  held  that  the  omission  to  prove  the  words  in  italics  was  not  a  material 
variance.     Orpwood  v.  Barkes,  4  Bingh.  261. 

So  where  the  plaintiff  declared  in  respect  of  a  libel  upon  him,  in  his  character 
of  surveyor  of  "  The  New  England  Company,"  it  was  held  to  be  sufficient  to 
prove  an  employment  by  a  company,  generally  known  by  that  name.  Ruther- 
ford r.  Evans,  6  Bingh.  451. 

(o)  2  Esp.  C.  491.  (p)  Flower  v.  Pedley,  2  Esp.  C.  491. 

[1]  So  held  in  North  v.  Van  Slyck,  2  Hill  282. 


STATEMENT  OF  THE  WORDS.  374 

affected  the  sense,  whether  the  words  were  set  out  under  an  inter 
alia  or  ad  tenorem. 

With  respect  to  variances  from  omission,  it  *seems,  in  [  *375  ] 
case  of  oral  slander,  to  be  sufficient  to  set  out  the  ivords 
ivUch  are  material,  and  it  is  not  not  even  necessary  to  state  words 
which  may  qualify  the  objectionable  ones  ;  and  in  the  case  of  libel, 
it  may  be  averred  in  uno  quorum  continetur  inter  alia  cj-c.  (5)  ; 
for,  if  something  else  were  added,  which  did  in  fact  qualify  the  ob- 
jectionable words,  it  may  be  given  in  evidence  on  not  guilty  (r). 

In  Sir  J.  Sydenham's  case  (s),  an  action  was  brought  for  these 
words :  "  If  Sir  John  Sydenham  might  have  his  will,  he  would  kill 
all  the'  true  subjects  of  England,  and   the  king  too ;  and  he  is  a 
maintainer   of  papistry    and   rebellious  persons."     The  defendant 
pleaded,  that  he  spoke  other  words,  absque  Jioc,  that  he  spake  these. 
The  iuryfind  that  he  spoke  these  Avords:  "J  tMnk,in  my  con- 
science,  if  Sir  John  Sydenham,"  &c    and  found  all  the  other  words 
verbatim    and   concluded  si  super  totum  matenain,  he  spake  the 
words  forma  qua  the  plaintiff  declared,  they  find  for  the  plaintiff  to 
his  damage  of  160  marks,  if  otherwise,  for  the  defendant.     And 
three  of  the  judges,  Montague,  C.  J.  Croke,  and  Doddendge,  J. 
held,  that  the  plaintiff  was  entitled  to  judgment,  smce 
the  other  words  found  were  not  *words  of  extenuation  or     [  *376  ] 
alteration  of  the  sense  of  the  former  words,  but  rather 
enforced  them,  and   that  there  was  no  cause  to  stay  the  plamtift  s 

^'''^'?For^  though  the  plaintiff  declared  of  fewer  words  than  the  de- 
fendant  spoke,  yet,  he  declaring  truly  that  the  defendant  spoke 
those  words,  upon  the  evidence,  it  appears  that  he  spoke  those  words 
which  were  actionable,  and  the  words  added  diminish  not,  nor  are 
an  alteration  of  the  sense  of  the  words  whereof  he  declares  ;^here- 
fore,  although  the  issue  be  specially  found,  yet,  the  plamtiff  shall 

have  iudgment."  ,      ,, 

The  fourth  judge  (Houghton),  was  of  opinion,  that  the  omission 

(,,)E...Brereton,8Mod.328.  (r)  8  Mod.  329. 

(s)  Cio.  J.  407. 


376  CIVIL  REMEDY— DECLARATION. 

of  part  of  the  words  proved,  though  the  sense  was  unaltered,  was  a 
fatal  variance. 

A  writ  of  error  was  afterwards  brought  upon  their  judgment,  and 
one  ground  of  error  assigned  was  the  variance  between  the  words 
alleged  and  those  proved  ;  and  of  this  opinion  were,  Hobart,  C.  J. 
of  the  Common  Bench,  Winch,  and  Denham ;  but,  Tanfield,  C.  B. 
Warburton,  Bromley,  and  Ilulton,  were  of  a  contrary  opinion, 
whereupon  the  judgment  was  affirmed  (i). 

With  respect  to  the  stating  of  libels,  as  a  copy  must 
[  *377  ]  be  set  out,  which  in  proof  is  to  be  *compared  with  the 
original,  it  seems  to  be  clear  that  any  variance  in  the 
mode  of  setting  it  out,  which  in  any  way  altered  the  sense,  would 
be  fatal ;  and  that  although  the  mere  mis-spelling  of  a  single  word 
would  not  be  material,  provided  it  was  not  altered  into  another  word 
of  a  different  meaning  ;  yet  that  any  variance,  either  from  omission 
or  addition,  which  affected  the  meaning,  would  also  be  fatal. 

For,  if  the  libel  alleged  vary  from  that  which  is  proved,  in  any 
material  respect,  they  cannot  be  identical,  and  the  cause  of  action 
alleged  cannot  be  the  same  with  that  proved. 

The  general  rule  will  be  best  illustrated  by  actual  decisions. 

Bell  averred  that  Byrne  printed  and  published,  in  the  Morning 
Post,  the  following  libel  concerning  the  plaintiff,  as  purporting  to  be 
a  letter  written  from  A.  to  R.  O'Connor. — "  I  have  sold  all  my  pro- 
perty to  B.,  yet  it  may  still  go  on  in  my  name,  and  the  rents  are  to 
be  transmitted  to  H.  Bell,  Esq.  Charter-House  Square.  Mr.  Bell 
(meaning  the  plaintiff,)  has  been  for  some  time  past  confined  in  Eng- 
land, on  a  charge  of  high  treason."  Upon  the  trial,  it  appeared, 
that  the  paragraph  in  question  had  been  published  by  the  defendant 
in  his  newspaper,  of  the  15th  of  May,  1810,  and  that  it  purported 
to  be  a  statement  of  a  speech  delivered  by  the  Attorney- 
[  *378  ]  General  for  *Ireland,  in  the  Irish  House  of  Commons,  on 
the  14th  of  Feb.  1799,  in  the  course  of  which  several 
letters  were  read  by  him.  The  defendant  objected  that  the  words 
"  Mr.  Bell  has  been  for  some  time  past  confined  in  England,  on  a 
charge  of  high  treason,"  did  not  constitute  part  of  the  letter  alleged 

(t)  Mich.  16  Jac. 


STATEMENT  OF  THE  LIBEL.  378 

to  have  been  read  by  the  Attorney-General,  but  were  published  as 
mere  comment  by  him  after  reading  tbe  letter,  and  were  therefore 
improperly  described  in  the  declaration,  as  purporting  to  be  part  of 
the  letter.  And  the  court  of  King's  Bench,  upon  a  motion  to  set 
aside  the  verdict  for  the  plaintiff,  and  enter  a  nonsuit,  ^Yere  of  opin- 
ion that  the  misdescription  was  fatal,  and  that  the  defendant  should 
have  been  described  as  professing  to  pubUsh  a  speech  of  the  At- 
torney-General, for  Ireland,  in  which  was  contained,  &c.  (w)- 

AVhere  the  libel  given  in  evidence  was  contained  in  a  book  pub- 
lished respecting  Mr.  Cobbett,  by  the  defendant,  called  "  The  Book 
of  Wonders,"  and  was  as  follows :  Many  well  intentioned  persons 
have  expressed  their  surprise  that  the  "  Enlightener  "  should  have 
been  willing  to  accept  of  a  seat  in  corruption's  den,  purchased  with 
the  bank  notes  of  a  man  whose  "  incapability  and  baseness  "  he  had 
so  powerfully  exposed.  To  convince  such  persons  that 
this  line  of  conduct  *was  strictly  patriotic,  we  have  only  [  *379  ] 
to  assure  them,  that  in  so  doing  he  was  walking  in  the 
footsteps  of  that "  venerable  veteran,"  whose  "  creed  is  the  criterion 
of  excellence  "  (see  No.  195),  and  who,  in  an  article  of  that  creed, 
has  laid  it  down  as  a  maxim,  "  that  we  must,  in  fighting  the  enemy, 
not  reject  the  use  of  even  despicable  and  detestable  men,"  Cobbett 
V.  32,  p.  82.  The  libel,  as  set  forth  in  the  declaration,  omitted  the 
words  ''  (see  No.  195),"  and  the  words  "  Cobbet  v.  32,  p.  82."  It 
was  held  that  the  variance  was  fatal ;  for  upon  reading  the  declaration, 
the  libel  would  be  understood  to  mean,  that  the  defendant  had  him- 
self made  the  assertions  respecting  the  plaintiff,  but,  when  the  libel 
is  produced,  it  appears,  from  the  references  which  it  contains,  that 
the  paragraph  was  written  with  intent  to  expose  the  conduct  not  of 
the  plaintiff,  but  of  another  person  (x}. 

One  count  of  a  declaration  stated  the  words  of  a  libel  as  follows : 
"  My  sarcastic  friend,  by  leaving  out  the  chorus  or  repetition  of 
Monsieur  T.'s  poem,  greatly  injures  the  tout  ensemble,  or  general 
and  combined  effect."  The  words  proved  in  evidence  were :  "  My 
sarcastic  friend  mslpo^:^  by  leaving  out,"  &c.,  and  it  was  held  by 

(m)  Bell  V.  Byrne,  13  East.  554. 

(a?)  Cartwright  v.  Wright,  5  B.  &  A.  615. 

Vol.  I.  54       • 


880  CIVIL  REMEDY— DECLARATION. 

Lord  Ellenborough,  L.  C.  J.,  upon  the  trial  of  the  *cause 
[  *880  ]  that  there  was  a  material  variance  between  the  libel  de- 
clared on  in  that  count  and  the  libel  proved  (y). 

Where  a  declaration,  in  stating  a  libellous  paragraph,  imputing  to 
the  plaintiff  that  be  had  formerly  a  house  in  P.,  and  some  time  prior 
to  that  he  had  one  in  M.,  in  both  of  ivhicli  he  continued,  omitted  the 
words  of  which  it  was  held  that  the  variance  was  fatal  (2). 

But  it  is  by  no  means  necessary,  even  in  case  of  libel,  to  set  out 
the  whole  of  the  obnoxious  publication ;  it  is  sufficient  to  extract 
the  obnoxious  passages,  provided  their  sense  be  clear  and  dis- 
tinct (a). 

It  is  not  even  necessary  to  set  out  another  part  of  the  publication 
to  which  the  libellous  passage  refers,  provided  the  part  which  is  set 
out  be  in  itself  distinct  and  intelligible  (5). 

But  where  distinct  passages  are  extracted  from  tho  same  libel  and 
set  out  in  the  declaration,  care  should  be  taken  to  distinguish  them, 
as  by  prefacing  them  with  the  words,  in  a  certain  part  of  which 
said  libel,  there  was  and  is  contained,  &;c.  setting  out 
[  *381  ]  the  passage,  and  in  a  certain  other  *paTt  of  which  said 
libel  there  was  and  is  contained,  &c.;  for  if  the  facts 
were  to  be  set  out  continuously,  and  the  sense  were  thereby  to  be  alter- 
ed, the  variance  would  be  fatal  (c). 

With  respect  to  the  alteration  of  one  or  more  letters  of  a  word, 
the  rule  seems  to  be,  that  if  the  sense  be  thereby  altered  the  vari- 
ance will  be  fatal,  but  not  otherwise  (d!). 

With  respect  to  the  mis-spelling  of  a  word,  provided  the  sense  be 
not  altered,  the  variance  is  not  material,  even  in  an  indictment  for 
perjury.  In  the  case  of  the  King  v.  Birch  (e) ,  a  variance  was  relied 

(y)  Tabart  v.  Tipper,  1  Camp.  C  350. 
(2)  Cooke  V.  Smyth,  M'Clell.  and  Young,  250. 

(a)  R.  V.  Brereton,  8  Mod.  329.  Cro.  645.  Sidnam  v.  Mayo,  1  Roll.  R. 
429.     Cro.  J.  407. 

(5)  Buckingham  v.  Murray,  1  C,  &  P.  46. 

(c)  Tabart  v.  Tipper,  1  Camp.  350  ;  and  see  Sidnam  v.  Mayo,  1  Roll.  R.  429. 
Cro.  J.  407,  and  quaere,  whether  if  the  passages  set  out  purported  to  be  continu- 
ous passages,  when,  in  fact,  they  were  extracted  from  various  parts  of  the  pub- 
lication, the  variance  would  not  be  fatal.      Cooke  v.  Hughes,  1  Ry.  &  M.  112. 

[d)  3  Salk.  224.  (e)  Leach,  C.  C.  L.  158. 


STATEMENT  OF  THE  LIBEL.  381 

upon  in  favour  of  the  prisoner  between  the  indictment  for  perjury 
and  the  affidavit  on  which  the  prosecution  was  founded.  In  the 
affidavit,  the  defendant  swore  that  he  understood  and  believed,  &c. 
The  assignment  of  perjury  in  the  indictment  was,  that  he  had  false- 
ly sworn  that  he  understood  and  believed,  &c.  omitting  the  letter  s. 

Lord  Mansfield — "This  is  an  application  for  a  new  trial 
in  an  indictment  for  perjury,  upon  *the  ground  of  a  mate-  [  *382  ] 
rial  variance  between  the  affidavit  and  the  indictment, 
the  letter  s  being  left  out  of  the  word  understood.  We  have  looked 
into  all  the  cases  on  the  subject,  some  of  which  go  to  a  great  length 
of  nicety  indeed,  particularly  the  case  in  Hutton,  where  the  word 
indicari  was  written  for  indictari,  but  that  case  is  shaken  by  the 
doctrine  laid  down  in  Hawkins  (/). 

"  The  true  distinction  seems  to  be  taken  in  the  Queen  v.  DraJce 
(^),  which  is  this  ;  that  where  the  omission  or  addition  of  a  letter 
does  not  change  the  word  so  as  to  make  it  another  word,  the  vari- 
ance is  not  material  (/«)• 

If  the  omission,  even  of  a  letter,  render  a  word  of  a  different  sig- 
nification from  that  contained  in  the  libel,  the  variance  seems  to  be 
fatal  (0- 

As  when  the  word  not  was  stated  instead  of  nor  ;  for,  it  was  said, 
if,  in  such  a  case,  a  letter  could  be  amended,  why  not  a  word,  why 
not  a  sentence  ?  and  where  would  the  non  ultra  be  found,  that  this 
was  not  so  small  a  variance  of  a  letter  as  in  false  spelling  or  abbre- 
viations, as  if  gaine  instead  of  gain,  where  the  word 
and  sense  would  be  the  same  ;  but  that,  in  the  *pri^cipal  [  *383  ] 
case  the  words  were  different  and  of  different  significa- 
tions ;  different  parts  of  speech,  the  one  an  adverb,  the  other  a 
conjunction  ;  the  one  positive,  the  other  relative.  It  was  observed, 
too,  that  though  the  objection  was  in  appearance  trivial,  the  conse- 
quences were  weighty,  and  that  if  the  variance  were  not  considered 

(/)  2  Hawk.  PI.  C.  c.  46.  s.  190.  {g)  Salic.  660. 

(A)  See  Hart's  case,  Leach  C.  C.  L.  172.  Douglass  194.  Starlcie  on  evi- 
dence, tit.  Variance.  (i)  3  Salk.  224. 


383  CIVIL  REMEDY— DECLARATION. 

as  fatal,  the  judges  vrould  have  too  great  power  in  cases  of  treason, 
where  the  decision  would  be  quoted  as  a:  precedent  [1] .  [«  a] 

Next  as  to  the  application  of  the  matter  published. — Where  the 
expressions  used  are  actionable,  either  in  themselves,  or  by  reason 
of  consequential  damage,  without  reference  to  any  extrinsic  circum- 
stances, it  is  sufficient  to  shew  merely  their  application  to  the 
plaintiff. 

This  is  effected  by  means  of  a  colloquium,  or  some  express  aver- 
ment, that  the  words  were  spoken  of  and  concerning  the  plaintiff, 
and  an  innuendo,  in  stating  the  words  themselves,  that  he  was  the 
person  meant  (A;). 

Formerly  it  was  the  practice  to  aver,  that  the  defendant  spoke  the 
words  in  a  certain  discourse  which  he  had  with  others,  or  with  the 
plaintiff  himself  in  the  jiresence  of  others,  concerning  the  plain- 
tiff. This  was  technically  called  laying  a  colloquium, 
[*384]     *and   till  the  case    Smith    v.    WardQ'),  it  seems    to 

(k)  The  nature  and  office  of  an  innuendo  will  afterwards  be  more  particularly 
considered. 

(0  Cro.  Jac.  673.    3  Salk.  328.     Sir  T.  Ray.  85. 

[1]  U.  Slates  for  United  States  held  an  immaterial  variance,  Lewis  v.  Few,  5 
Johns.  R.  1.  When  variances  have  been  held  material  or  otherwise,  see  South- 
■wick  U.Stevens,  11  Johns.  443;  Tillotson  t;.  Chetham,  3  Id.  57;  Hariis 
V.  Lawrence,  1  Tyler  156. 

[a  a]  By  the  late  stat.  9  G.  IV.  ch.  15,  it  is  enacted  that  it  shall  and  may  be 
lawful  for  every  court  of  record  holding  plea  in  civil  actions,  any  judge  silting 
at  nisi  prius,  and  any  couit  of  oyer  and  terminer  and  gaol  delivery  in  England, 
Wales,  the  town  of  Berwick  upon  Tweed,  and  Ireland,  if  such  court  or  judge 
shall  see  fit  so  to  do,  to  cause  the  record  on  which  any  trial  may  be  pending,  be- 
fore any  such  judge  or  court,  in  any  civil  action,  or  in  any  indictment  or  inform- 
ation fur  any  misdemeanor,  when  any  variance  shall  appear  between  any  matter 
in  writing  or  in  print  produced  in  evidence,  and  the  reciial  or  setting  forth  thereof 
upon  the  record,  whereon  the  trial  is  pending,  to  be  forthwith  amended  in  such 
particular,  by  some  officer  of  the  court,  on  payment  of  such  costs  (if  any)  to  the 
other  party,  as  such  judge  or  court  shall  think  reasonable  [1]. 

[1]  In  New- York  it  is  provided  by  statute,  that  every  variance  between  any  i/islru- 
ment  in  writing,  and  the  recital  in  or  reference  to  in  any  pleading  or  writing,  shall  be 
disrcsrarded  upon  the  trial  of  a  cause,  unless  the  variance  or  mist:ike  be  calculated  to 
surprise  and  mislead  the  opposite  part}-,  and  to  prevent  his  making  due  preparation 
for  a  full  answer  on  the  merits.  2  R.  S.  328,  §  99,  2d.  ed.  See  also  p.  343  and 
S44,  and  Mappa  v.  Pease,  15  Wendell  672.  Matters  in  -print  as  well  as  in  writing, 
po  doubt  are  within  the  meaning  of  this  act. 


APPLICATION  OF  THE  WORDS.  384 

have  been  doubted  whether  a  declaration  without  a  colloquium 
would  be  good.  In  that  case,  it  was  alleged  that  the  defendant 
said  of  the  plaintiff,  "  He  (innuendo  the  plaintiff)  is  a  thief ;"  and 
the  court,  on  being  informed  that  it  was  the  common  course  to  de- 
clare that  he  said  de  prnfato  querente  hcec  verba,  held  it  to  be  suf- 
ficient without  a  colloquium. 

But  though  the  custom  was  to  lay  a  colloquium,  it  was  always 
held  to  be  necessary  to  aver  that  the  words  were  spoken  concerning 

the  plaintiff  [ad]. 

Where  actionable  words  are  spoken  to  a  plaintiff,  it  is  sufficient  to 
lay  a  colloquium  with  him  without  an  express  averment  that  the 
words  were  spoken  de  querente  ;  for  it  cannot  but  be  intended  that 
the  words  were  spoken  to  him  with  whom  the  conversation  is  alleged 
to  have  been  had  (iri) . 

But  where  actionable  words  are  spoken  in  the  third  person,  as, 
"  He  is  a  thief;"  though  a  colloquium  of  the  plaintiff  be  laid,  it  is 
necessary  to  aver  that  the. words  were  spoken  concerning  the  plain- 
tiff (n). 

And  it  is  not  sufficient,  in  such  case,  to  connect  *the  [  "SSS  ] 
words  with  the  plaintiff  by  means  of  an  innuendo  (o)  [1] . 

But  where  a  colloquium  is  laid,  and  there  is  an  innuendo  of  the 
plaintiff,  it  seems  that  the  want  of  a  direct  averment  must  be  pomted 
out  by  special  demurrer,  and  that  it  will  be  intended  after  verdict, 
or  upon  general  demurrer,  that  the  words  were  spoken  of  the  plam- 

\a  a\  Where  the  declaration  alleged  that  the  defendant  did  print  and  publish, 
of  and  concerning  the  plaintiff,  a  libel,  containing  the  false  and  scandalous  mat- 
ter foUowino-,  without  alleging  that  the  matter  was  of  and  concerning  the  plain- 
tiff and  then  set  out  the  alleged  libel,  which,  on  the  face  of  it,  did  not  mani- 
festly appear  to  relate  to  the  plaintiff,  and  there  was  no  innuendo  to  connect  it 
with  the  plaintiff,  the  count  was  held  to  be  bad,  on  a  writ  of  error  brought. 
Clement  v.  Fisher,  7  B.  &  C.  459. 

(m)  Roll.  Ab.  85.  pi.  8.     1  Will.  Saun.  242.  (a)  n.  3. 
(n)  Roll.  Ab.  85. 1.  30.     1  Sid.  62.    1  Com.  Dig.  tit.Defara-     G.  7. 
(o)  Cro.  J.  126. 

rn  See  to  same  effect,  Sayre  ..  Jewett,  12  Wendell  135.  See  also  Lindsley 
..  Smith,  7  Johns,  R.  359  ;  Nestle  ..  Van  Slyck,  2  Hill  282,  and  lilus  v.  Fol~ 
lett.  Id.  318. 


385  CIVIL  REMEDY— DECLARATION. 

tiff;  but  where  no  communication  is  laid  concerning  the  plaintiff, 
the  omission  of  such  an  averment  (p)  is  fatal  to  the  declaration. 

Where  the  person  slandered  is  pointed  out  by  the  prefatory  words 
thy  son,  thy  brother,  &c.  or  my  son,  my  brother,  which  description 
may  possibly  apply  to  several,  it  seems,  from  the  current  of  decisions, 
that  the  plaintiff  must  aver  that  he  stood  in  the  described  relation, 
and  that  he  was  the  son  or  the  brother  of  the  person  addressed  in 
the  former  case,  or  of  the  speaker  in  the  latter,  and  that  a  general 
allegation  that  the  words  were  spoken  of  and  concerning  the  plain- 
tiff is  insufficient  (5). 

Where  the  words  were,  "  Go,  tell  my  landlord  (in- 
[  *386  ]  nuendo  the  plaintiff)  he  is  a  thief  (?')•"  Judgment  *was 
given  against  the  plaintiff,  for  not  having  averred  that 
he  was  the  landlord  of  the  defendant,  although  he  had  averred  that 
the  words  were  spoken  of  himself.  And  it  is  not  sufficient  to  bring 
the  plaintiff  within  the  description  by  means  of  an  innuendo  (s). 

And  even  where  the  description  could  by  possibility  apply  to  one 
person  only,  it  has  been  held  than  an  averment  is  necessary,  to  shew 
that  it  was  applied  to  him. 

The  plaintiff  declared  that  the  defendant  having  a  discourse  con- 
cerning the  plaintiff  with  divers  other  persons,  said  these  -words  of 
the  plaintiff,  "  Your  father  (meaning  the  plaintiff}  hath  struck  and 
killed  Nicholas  Russell."  And  after  verdict  for  the  plaintiff,  judg- 
ment was  arrested,  because  it  was  not  averred  that  the  plaintiff  was 
father  to  him  to  whom  the  words  were  spoken  (f). 

In  Shalmer  v.  Foster  (w),  the  declaration  stated,  that  "  the  wife 
of  the  defendant  spake  of  the  aforesaid  plaintiff  to  Ann  Rochester, 
the  plaintiff's  mother,  these  -words,  "  Where  is  that  lying  thief,  thy 
Sonne,  &c."     And  it  was  moved  in  arrest  of  judgment,  that  the 

{'p)  Roll.  R.  244.  Skutt  v.  Hawkens,  1  Will.  Saun.  242.  a.  n.  3. 

{q)  1  Roll.  84.  I.  15.  30.  50.  85.  I.  45.  Cio.  Carr  443.  Jon.  376.  Cro.  Eliz. 
416,  even  after  verdict. 

(r)  Cro,  Car,  420. 

(s)  Delamore  v.  Heskins,  Hill,  11  Car.K.  B.  1  Vin.  Abr.  528. 

(0  Hil.  1652.  Rot.  1037.  1  A^in.  Ab.  530.  Golds.  187.  Cro.  Eliz.  416. 
439.     Cio.  Car.  92.  173.     Mo.  365. 

(u)  Cro.  Car.  177.    But  See  Cro.  J.  107. 


COLLOQUIUM  OF  THE  PLAINTIFF.  387 

words  were  uncTertain,  no  precedent  commuDication  being 
alleged  to  be  of  *the  plaintiff,  nor  that  he  was  the  only     [  *387  ] 
son  of  the  said  Ann  Rochester,  to  whom  the  words  were 
spoken,  and  that  it  might  be  that  she  had  divers  sons,  and  every  of 
them  mio-ht  have  an  action  as  well  as  the  plaintiff,  and  that  there 
was  an  ambiguity  who  was  meant   by  the  words.     And  Whitelock 
and  Croke  were  of  that  opinion ;  and  the  latter  cited  the  cases  of 
Harvey  and  Chamberlain  (a;),  and  of  Burnet  and  Codman  (?/), 
where  for  such  words  it  was  adjudged  for  the  defendant.     But  Hyde, 
C.  J.  and  Jones,  J.  doubted  thereof,  because  it  was  alleged  that  she 
spoke  of  the  plaintiff,  and  was  found  guilty.     But  it  was  answered, 
that    60  were  the  words  in  every  declaration,  and  that  so  it  was  in 
the  precedents  cited  (z). 

At  this  day,  after  so  many  of  the  tcehnical  niceties,  with  which  ac- 
tions of  this  description  were  formerly  encumbered,  have  been  defeat- 
ed, it  may  be  well  doubted  whether  much  attenion  would  be  paid 
to  these  cases.  The  real  end  and  object  of  such  averments  is,  to 
shew  with  certainty  that  the  plaintiff  is  the  person  aimed  at  by  the 
defendant ;  and  though,  upon  the  face  of^the  words  themselves,  their 
application  may  be  ambiguous,  as  where  the  defendant  says,  thy  son, 
or  thy  brother,  yet  there  appears  no  want  of  certainty 
upon  the  record,  when  it  is  alleged  that  *the  words  were  [  *388  ] 
spoken  of  the  x^laintiff ;  and  whether  they  were  so  ap- 
phed  or  not,  is  a  matter  of  evidence,  to  be  proved  by  shewing  that 
he  did  stand  in  the  relation  specified,  without  due  proof  of  which 
the  jury  could  not  possibly  find  the  truth  of  the  averment  that  the 
words  were  spoken  concerning  him. 

Considering,  however,  the  great  number  of  express  decisions  upon 
this  subject,  it  would  not  be  prudent  to  omit  a  special  averment. 
Thus  if  the  words  were,  "  He  who  lives  at  No.  1,  Doubtful  Place, 
is  a  receiver  of  stolen  goods,"  it  would  be  proper  that  the  plaintiff, 
being  the  person  meant,  should  allege  that  he  lived  at  No.  1,  Doubt- 
ful Place,  when  the  words  were  spoken,  and  not  only  to  aver  that 
the  words  were  spoken  of  him,  but  also  to  allege  specifically  that 
they  were  spoken  in  reference  to  the  house  in  which  he  so  lived. 

(r)  E.  T.  20  J.  1.         (y)  T.  T.  5.  J.  1.  (2)  The  court  adjourned. 


388  CIVIL  REMEDY— DECLARATION. 

Where  the  description  may  apply  to  several  persons,  as  brothers 
or  sons,  it  is  unnecessary  for  the  plaintiff  to  aver,  that  be  was  the 
only  brother  or  only  son.  so  as  to  make  it  appear  that  the  descrip. 
tion  applied  to  himself  exclusively.  This  objection,  however,  appears 
to  have  frequently  been  taken  ;  and  in  Wiseman  v.  Wiseman  (a), 
where  the  defendant  spoke  the  words  de  ina:fato  querente  existente 
fratre  suo  natiirali,  on  motion  in  arrest  of  judment,  it  was 
[  *389  ]  held  by  Yelverton,  *J.  that  the  words  were  too  uncertain 
that  words,  to  be  actionable,  ought  to  import  in  themselves 
precise  slander  without  ambiguity,  so  that  every  one  who  heard  them 
might  intend  of  whom  they  were  spoken  ;  for  otherv^ise,  if  it  could 
he  helped  by  the  averment  of  the  plaintiff,  every  one  who  was  his 
brother  might  make  the  same  averment,  and  have  an  action  which 
would  not  be  reasonable.  But  it  was  afterwards  adjudged,  by  all 
the  judges,  for  the  plaintiff. 

A  distinction  was  taken  in  the  last  case  by  Tanfield,  J.  between 
words  importing  in  themselves  apparent  uncertainty,  and  those  which 
might  be  ascertained  by  intendment.  That,  in  the  first  case,  no 
averment  would  aid  the  uncertainty,  but  that,  in  the  latter,  it 
might  be  aided  by  an  averment  and  verdict ;  and  therefore,  if  the 
words  had  been  "  one  of  my  brothers  is  perjured,"  there  would  bo 
in  them  an  apparent  uncertainty ;  and  that,  although  one  of  the 
brothers  should  bring  the  action,  and  aver  that  they  were  spoken 
of  him,  yet  that  because  it  appeared  to  the  court  that  there  were 
divers  brethren,  and  that  it  did  not  appear  to  any  of  whom  he  spake, 
no  action  would  lie,  although  the  defendant  should  be  found  guilty 
by  verdict. 
But  it  has  since  been  held  (5),  that  for  disjunctive  words,  as  that 
A.  or  B.  committed  such  a  felony,  both  A.  and  B.  are 
[  *390  ]  entitled  to  recover,  *and  it  would  problably  now  be  de- 
cided upon  the  same  principle,  that  in  the  case  put  by 
the  learned  Judge,  each  brother  would  be  allowed  to  maintain  his 
action  [1]. 

(a)  Cro.  J.  107.  (b)  Harrison  v.  Thornborough,  10  Mod.  196. 

[1]  Same  doctrine  held  in  Gidney  v.  Blake,  11  Johns.  R.  54.     See  note  [1] 
page  110,  ante. 


COLLOQUIUM  OF  THE  PLAINTIFF.  390 

When  the  plaintiff's  name  is  mentioned,  though  a  further  descrip- 
tion be  given  (tf),  the  general  averment  is  sufficient,  without  a 
special  allei^ation  that  such  farther  description  applied  to  the  plain- 
tiff. As,  "where  the  speaking  is  alleged  to  be  of  the  plaintiff,  and 
the  -words  are  stated,  "  T.  (innunendo  the  plaintiff)  is  thy  brother, 
&c."  it  is  sufficient  -without  any  other  averment. 

In  Nelson  v.  Smith  (^d),  the  -words  were,  "  Captain  Nelson  is  a 
rogue  and  a  thief,  and  hath  stolen  a-way  my  goods  ;"  and  it  -was 
held,  that  the  declaration  -was  good  without  any  averment  that  he 
was  a  captain,  or  known  by  that  name,  inasmuch  as  there  was  a 
communication  of  the  plaintiff,  and  it  was  averred  that  the  words 
were  spoken  of  him. 

The  general  rule  is,  that  where  the  party  can  shew  that  he  was 
intended  by  the  defendant,  he  may  maintain  an  action,  whatever 
be  the  mode  of  description. 

Thus,  for  the  words,  "  The  parson  of  Dale  is  a  thief ;" 
it  was  held  that  he  who  was  parson  of  *Dale  at  the  time     [  *391  ] 
the  words  were  spoken  might  maintain  an  action  (^e). 

The  defendant  said,  "  That  murderous  knave  Stoughton  lay  in 
wait  to  murder  me  ;"  and  the  action  brought  by  Thomas  Stoughton 
was  held  to  be  maintainable  (/). 

But,  in  the  next  place,  whenever  the  actionable  quality  of  the 
pubUcation  arises  from  circumstances  extrinsic  of  the  words  them- 
selves, averments  are  necessary  to  shew  that  such  circumstances 
exist,  and  to  connect  the  words  with  those  circumstances. 

Thus,  if  the  words  were — "  He  was  concerned  in  the  late  affair 
at  B.'s  house,"  the  words  unexplained  would  not  bear  any  action- 
able construction  ;  but  if  they  were  spoken  with  reference  to  a 
burglary  lately  committed,  or  supposed  to  have  been  committed,  at 
B.'s  house,  and  it  was  intended  to  impute  to  the  plaintiff  a  par- 
ticipation in  the  crime,  they  would  become  actionable.  Bat  in  or- 
der to  shew  their  actionable  quality  on  the  face  of  the  record,  it 

(c)  Cro.  Eliz.  429. 

id)  22  C.  1.  B.  R.  See  also  Osborne  v.  Brookes,  1  Vin.  Ab.  529.  1  Roll. 
Ab.  85- 

(e)  3  Bulst.  326.  (/)  Sheppard,  Action  of  Slander,  59. 

Vol.  I.  55 


891  CIVIL  REMEDY— DECLARATION. 

would  be  essential  to  allege  the  facts,  and  next  to  shew  that  the 
words  were  spoken,  or  libel  published,  in  reference  to  those  facts. 

The  technical  mode  of  effecting  this,  is,  first,  to  state, 
[  *392  ]     in  the  introductory  part  of  the  declaration,  *those  special 
circumstances,  in  reference  to  which  the  publication  is 
actionable. 

Secondly,  To  shew  generally,  by  means  of  proper  averments,  that 
the  words,  or  libel,  were  published  of  and  concerning  the  facts  and 
circumstances  so  previously  alleged. 

Thirdly,  To  connect  the  words,  or  libel,  set  out  with  such  previous 
facts  by  means  of  proper  innuendos. 

By  this  process  such  extrinsic  facts  are  incorporated,  as  it  were, 
with  the  defendant's  publication,  and  a  complete  slanderous  charge 
appears  on  the  face  of  the  record. 

In  what  cases  it  may  be  necessary  to  state  prefatory  circum- 
stances, to  be  afterwards  connected  with  the  publication  by  means 
of  a  colloquium  and  innuendos,  is  of  course  a  matter  in  which  the 
pleader  must  exercise  his  discretion  in  the  particular  instance  before 
him ;  the  only  general  rule  that  can  be  laid  down  is,  that  such  cir- 
cumstances must  be  introduced  upon  the  record,  as  will  enable  the 
court  to  decide  upon  the  actionable  quality  of  the  publication,  and 
the  jury  to  find  the  facts  which  are  connected  with  it  [a  a]  [1]. 

[a  a]  Where  the  declaration  averred  that  the  plaintiff  was  a  justice  of  the 
peace,  and  that  the  libel  was  published  of  him  as  such  justice,  and  the  alleged 
libel  stated,  in  substance,  that  the  plaintiff  had  beea  chairman  of  the  finance 
committee  of  the  county,  and  had  audited  accounts  containing  items  to  a  large 
amount,  nominally  to  furnish  lodgings  for  the  judges,  but,  in  reality,  for  the  ac- 
commodation of  the  magistrates,  as  the  sheriff  had  always  provided  suitable 
lodgings  without  putting  the  county  to  any  expense,  innuendo  :  (thereby  mean- 
ing that  the  plaintiff  had  conducted  himself  corruptly,  unduly,  and  improperly, 
in  his  office  of  justice,)  it  was  held,  that  the  libel  was  not  on  the  face  of  it  ac- 
tionable, and  that  there  being  no  preparatory  averment  to  which  the  innuendo, 
by  referring,  might  have  shown  it  to  be  an  offence  in  him  to  have  so  audited  the 
accounts,  the  defect  was  not  cured  by  verdict :  and  judgment  was  therefore  ar- 
rested. Adams  v.  Mendew,  2  Y.  and  J.  417.  See  also  Goldstein  v.  Foss,  vol. 
2,  p.  305 ;  Stockley  v.  Clement,  id. 

Where  the  libellous  meaning  is  apparent  on  the  face  of  the  libel,  innuendos 
are  unnecessary,  bat  though  they  be  unnecessarily  introduced  and  be  unsupport- 


EXTRINSIC  FACTS— WHEN  TO  BE  AVERRED.  392 

It  may  be  laid  down  as  a  general  rule,  that  where  the  slanderous 
charge  or  imputation  can  he  collected  from  the  words  themselves,  it 
is  unnecessary/  to  make  any  averment  as  to  circumstances, 
to  whose  supposed  existence  the  tvords  *refer.  For  the  [  *393  ] 
slander,  which  is  the  ground  of  proceeding,  appearing  on 
the  very  face  of  the  publication,  it  is  a  matter  of  indifference  as  to 
the  cause  of  action,  whether  the  circumstances  referred  to  really 
existed,  or  were  invented  by  the  defendant. 

Thus,  when  a  person  says  of  another  (<;),  "  That  is  the  man  who 
killed  my  husband,"  no  averment  of  the  husband's  death  is  neces- 
sary, for  the  defendant's  words  have  ascertained  the  death. 

The  defendant  said  to  the  plaintiff  (/i),  "  Thou  hast  given  J.  S. 

ed  by  prefatory  averments,  they  do  not  vitiate  the  declaration.  Archbishop  of 
Tuam  V.  Robeson,  5  Bingh.  17. 

[1]  Where  the  words  or  libel  do  not  necessarily  point  to  the  plaintiff,  as  the 
individual  slandered,  it  is  indispensable  to  the  maintenance  of  the  action,  that  in 
the  introductory  part  of  the  declaration,  extrinsic  facts  and  circumstances  be 
averred,  so  that  when  they  are  received  in  connection  with  the  words  or  libel 
and  with  the  innuendos,  the  conclusion  will  be  inevitable  that  the  plaintiff  is  the 
person  slandered  :  or  in  other  words  the  extrinsic  facts  must  be  so  incorporated 
into  the  declaration,  as  to  be  made  an  integral  part  of  the  case,  and  the  whole 
thus  form  one  entire  slanderous  charge  upon  the  face  of  the  record,  Gibson  v. 
Williams,  4  Wendell  320  ;  and  Miller  v.  Maxwell,  16  Id.  91.  So  where  from 
the  ambiguity  of  the  terms  used  in  reference  to  the  offence  charged,  the  words 
have  a  covert-meaning,  to  render  the  declaration  good,  it  must  be  averred  that 
they  were  spoken  ivith  the  intent  to  charge  a  particular  crime  ;  the  difficulty  can- 
not be  obviated  by  an  innuendo.  Andrews  v.  Woodmanse,  15  Wendell  233. 
An  averment  thus  made  is  the  subject  of  proof  ,  whilst  an  innuendo  is  not. 
Witnesses  may  be  called  to  detail  facts  and  circumstances  within  their  know- 
ledge, relied  upon  to  shew  either  that  a  crime  was  imputed,  or  that  it  affected  the 
plaintiff;  but  it  seems  the  courts  in  New-York  hold  that  it  is  not  proper  to  allow 
the  witnesses  to  state  their  conclusions  from  the  facts,  as  to  the  intention  of  the 
defendant  to  apply  the  words  or  libel  to  the  party  or  circumstances  as  alleged, 
Van  Vechten  v.  Hopkins,  5  Johns.  R.  211,  and  Gibson  v.  Williams,  4  Wendell 
320.  Mr.  Starkie,  in  his  treatise  on  the  Law  of  Evidence,  part  iv.  page  861, 
lays  down  the  rule  directly  the  reverse.  What  is  said  by  him  is  adverted  to  and 
condemned  by  the  learned  judge,  who  pronounced  the  opinion  of  the  court  in 
Gibson  v.  Williams. 

(g)  Button  V.  Haywood  and  his  wife,  8  Mod.  24-     Vent.  117. 

(A)  Cro.  Car.  337. 


393  CIVIL  REMEDY— DECLARATION. 

£9,  for  forswearing  himself  in  chancery,  and  hast  hired  him  to 
forge  a  bond."  After  verdict  for  the  plaintiff,  it  was  moved,  in 
arrest  of  judgment,  that  the  declaration  contained  no  allegation  that 
any  suit  was  in  chancery,  or  that  J.  S.  forswore  himself  in  his  an- 
swer, or  as  a  witness,  or  that  the  plaintiff  suborned  J.  S.  to  forswear 
himself,  or  shew  any  particular  wherein  he  forswore  himself.  But 
it  was  held  that  these  averments  were  immaterial ;  for  if  J.  S. 
never  was  sworn,  it  was  scandalous  in  the  defendant  to  say  that  the 
plaintiff  procured  J.  S.  to  forwear  himself  in  a  court  of  record, 
although  it  was  merely  false,  because  he  never  was  sworn.  And 
that  as  to  the  bond,  though  it  was  not  said  that  J.  S.  had  forged  a 
bond,  the  charge  against  the  plaintiff  was  nevertheless  scandalous. 
*In  an  action  for  these  words  (z),  "  Thou  hast  killed 
[  *394  ]  thy  master's  cook,"  on  motion  in  arrest  of  judgment,  it 
was  held  to  be  unnecessary  to  make  any  averment, 
shewing  who  the  plaintiff's  master  was,  or  that  he  was  the  master  of 
the  person  slain,  because  the  words  in  themselves  imputed  slander. 

In  Wilner  v.  Hold,  the  words  were,  "  Thou  art  a  rogue  and  a 
rascal,  and  hast  killed  thy  wife."  On  motion  in  arrest  of  judgment, 
amongst  other  causes,  it  was  alleged  that  an  action  lay  not  for  the 
words,  because  it  was  not  shewn  that  the  wife  was  dead,  or  how  she 
was  killed  ;  but  the  objections  were  overruled  (Jc),  and  the  plaintiff 
had  judgment. 

In  declaring  for  the  words,  "  I  will  call  him  in  question  for 
poisoning  my  aunt,"  there  needs  no  averment  that  the  aunt  was 
poisoned  (Z). 

There  are,  notwithstanding,  many  cases  to  be  found  in  the  books 
where  averments  of  this  kind  have  been  deemed  to  be  indispensable  ; 
but  as  these  are  contradicted  by  the  more  modern  decisions  (m), 
and  are  rather  remarkable  for  their  subtlety  than  for  either  con- 
venience or  consistency,  it  would  be  a  waste  of  time 
[  *395  ]  to  take  further  *notice  of  them  than  by  citing  a  few  speci- 
mens. 

(z)  Cooper  v.  Smith,  Cro.  J  423.  (k)  See  1  Vin.  Ab.  513.  pi.  1.  2. 

(0  Cro.  Eliz.  569,  823. 

(to)  Peake  v.  Oldham.  Cowp.  275 


EXTRINSIC  FACTS— WHEN  TO  BE  AVERRED.  395 

After  verdict  for  the  ^vorcls,  "  Tliou  art  as  arrant  a  thief  as  any 
in  England,"  (w)  it  was  held,  in  arrest  of  judgment,  that  the  words 
were  not  actionable,  for  want  of  an  averment  that  there  was  any 
thief  in  England. 

After  verdict  for  the  words,  "  Thou  art  a  murthcrer,  for  thou  art 
the  follow  that  did  kill  Mr.  Sydnam's  man,"  judgment  was  reversed, 
for  want  of  an  averment  that  any  of  Mr.  Sydnam's  men  had  been 

slain  (o). 

The  words  were,  "  Whosoever  he  is,  that  is  the  falsest  thief  and 
the  strongest  in  the  county  of  Salop,  whatsoever  he  hath  stolen,  or 
whatsoever  he  hath  done  (p),  Thomas  Haselwood  is  falser  than  he," 
it  was  held  necessary  to  aver  that  there  were  felons  in  the  county 
of  Salop.  But  this  resolution  is  to  be  attributed  to  the  anxiety  of 
the  courts  to  discourage  such  actions ;  it  seems  pretty  clear  that  at 
the  present  day,  no  such  averment  would  be  deemed  necessary. 

It  would  be  sufficient  to  aver  that  the  defendant,  intending  to 
charge  the  plaintiff  with  felony,  spoke   the  words  ;  and 
in  setting  them  out,  to  add  *an  innuendo  to  the  same  ef-     [  *396  ] 
feet,  in  which  case  a  verdict  for  the  plaintiff  would  be 
conclusive  as  to  the  defendant's  meaning  and  intention. 

The  introduction  of  useless  averments  is  in  all  cases  objectionable, 
inasmuch  as  it  encumbers  the  plaintiff's  case  upon  the  trial  with  un- 
necessary proof,  and  in  some  instances  the  superfluity  may  prove 
fatal  to  the  declaration. 

In  the  case  of  Snag  v.  Qee  (q),  where  it  appeared  upon  the  re- 
cord that  the  person  with  whose  murder  the  plaintiff  had  been 
charged  by  the  defendant,  was  still  alive,  it  was  held  that  no  action 
was  maintainable. 

And  ivhere  the  words  of  the  defendant  are  general,  no  explanation 
is  necessary  to  render  them  more  particular. 

The  defendant  (r)  charged  the  plaintiff  with  having  forsworn 

(n)  Foster  v.  Browning.  Cro.  J.  687. 

(o)  Barons  v.  Ball,  Cro.  J.  331.— See  a  conjecture  upon  the  original  reason  of 
this  scrupulous  nicety,  p.  81. 
(p)  Shepp.  Ac.  269. 
{q)  4  Rep.  16.     1  Yin.  Ab.  409.  pi.  4. 
(r)  Sir  R.  Snowe  v.  ,  Cro.  Car.  321. 


896  CIVIL  REMEDY— DECLARATION. 

himself  in  his  answer  to  a  bill  in  chancery.  After  verdict  for  the 
plaintiff,  it  was  moved,  in  arrest  of  judgment,  that  the  particulars  of 
the  perjury  imputed  were  not  pointed  out  in  the  declaration,  and 
that  many  indictments  for  perjury  had  been  quashed,  for  not  show- 
ing the  perjury  to  have  been  in  a  material  point.  But  the  court 
held,  that  though  indictments  ought  to  show  the  cause  of 
[  *397  ]  perjury,  yet  that  in  an  action  *for  words  which  is  ground- 
ed on  the  speech  of  another,  the  charge  cannot  be  en- 
larged further  than  the  other  spoke. 

So,  in  cases  where  a  felony  is  charged,  it  is  unnecessary  to  make 
any  averment,  introducing  any  circumstances  relating  to  a  felony 
actually  committed  ;  so,  with  respect  to  imputations  of  forgery  or 
perjury,  where  the  meaning  can  be  collected  from  the  defendant's 
own  words,  no  averment  ought  to  be  made  as  to  the  existence  of  any 
circumstance  to  which  the  defendant  might  by  possibility  allude, 
since  it  has  been  long  settled  that  their  existence  is  perfectly  imma- 
terial to  the  maintenance  of  the  action  (s) 

But  in  case  of  a  charge  of  forswearing,  unless  from  the  accom- 
panying words,  it  be  clear  that  a  judicial  forswearing  was  meant,  the 
plaintiff  must  show  upon  the  record  that  the  defendant  alluded  to 
some  particular  forswearing  which  amounted  to  perjury.  Thus,  in 
a  declaration  for  saying,  (t}  "A.  B.  being  forsworn,  compounded 
the  prosecution,"  no  introduction  of  extrinsic  facts  is  necessary, 
since  an  indictable  forswearing  must  have  been  meant ;  but  in  de- 
claring for  the  words  (it),  "  He  has  forsworn  himself  in  Leake 
Court,"  it  is  necessary  to  show  that  Leake  Court  was  one 
[  *398  ]  'in  which  the  offence  of  perjury  could  have  been  commit- 
ted. 

In  the  King  v.  Home  Qx),  the  libel,  as  stated  in  the  information, 
was  averred  to  be  of  and  concerning  his  said  majesty's  government, 
and  the  employment  of  his  troops.  The  libel,  as  set  forth  in  tho 
information,  advertised  a  subscription  for  "  the  relief  of  the  widows, 
orphans,  and  aged  parents  of  our  beloved  American  fellow  subjects, 
who,  faithful  to  the  character  of  Englishmen,  and  preferring  death 

(5)  Vid.  Supra  85.  (t)  Cro.  Eliz.  609. 

(m)   1  Roll.  Ab.  39.  pi.  7.     6  Bac.  Ab.207.  {x)  Cowp.  68-:j. 


EXTRINSIC  FACTS—WHEN  TO  BE  AVERRED.  398 

to  slavery,  -were,  for  that  reason  only,  inhumanly  murdered  by  the 
King's  (meaning  his  said  majesty's)  troops  at  or  near  Lexington 
and  Concord,  &c.  in  the  province  of  Massachusetts."  The  defend- 
ant having  been  found  guilty,  objected,  in  arrest  of  judgment,  that 
there  was  no  averment  as  to  the  state  of  the  Massachusetts  colony 
at  that  time,  or  that  the  king  had  sent  any  troops  there,  or  that  the 
employment  of  the  troops  was  by  the  king's  authority. 

Lord  C.  J.  De  Grey,  in  giving  judgment,  observed,  "  The  words 
in  the  present  case  are,  that  the  defendant,  of  and  concerning  the 
king's  government  and  the  employment  of  his  troops,  said,  *  that 
innocent  subjects  had  been  inhumanly  murdered  by  the  king's  troops 
for  preferring  death  to  slavery.'  Do  these  words  import, 
in  *their  natural  and  obvious  sense,  that  the  king's  troops  [  *399  ] 
were  employed  by  the  act  of  government  inhumanly  to 
murder  the  king's  innocent  subjects  ?  There  can  be  no  doubt  but 
that  the  king's  government  comprehends  all  the  executive  power, 
both  civil  and  military,  that  h^  employs  all  the  national  force,  and 
that  his  troops  are  the  instruments  with  which  part  of  the  executive 
government  is  to  be  carried  on.  The  introductory  part  of  this  in- 
formation charges  that  the  subject  of  the  writing  in  the  present  case 
was,  "  the  troops  and  the  king's  troops,  and  the  business  they  had 
done." 

"  It  has  been  truly  said,  that  the  king's  troops  may,  like  other 
men,  act  as  individuals,  but  they  can  be  employed  as  troops  by  the 
act  of  government  only.  If  the  averment,  therefore,  amount  to 
this,  that  in  the  discourse  which  was  held,  the  words  were  said, '  of 
and  concerning  the  king's  government,'  the  natural  import  appears 
to  us  to  be  this  :  '  I  am  speaking  of  the  king's  administration,  of  his 
government  relative  to  his  troops,  and  I  say,  that  our  fellow  subjects 
faithful  to  the  character  of  Englishmen,  and  preferring  death  to 
slavery,  were  for  that  reason  only  inhumanly  murdered  by  the  king's 
order,  or  the  orders  of  his  officers.'  The  motive  imputed  tends  to 
aggravate  the  inhumanity  of  the  act,  and  consequently  of 
the  imputation  itself,  because  it  *arraigns  the  government  [  *400  ] 
of  public  trust,  in  employing  the  means  of  the  defence  of 
the  subject,  in  the  destruction  of  the  lives  of  those  who  are  faithful 
and  innocent. 


400  CIVIL  REMEDY— DECLARATION. 

"  As  to  any  other  circumstances  not  stated  in  the  information,  if 
those  Avhich  are  stated  do  of  themselves  constitute  an  offence  ;  the 
rest  supposed  by  the  defendant,  whether  true  or  false,  would  have 
been  only  matter  of  aggravation,  and  not  any  ingredient  essential  to 
the  constitution  of  the  crime,  and  therefore  not  necessary  to, be 
averred  on  the  record." 

With  respect  to  the  allegation  of  collateral  circumstances,  in  re- 
ference to  which  the  publication  is  actionable,  care  should  be  taken 
not  to  allege  them  too  minutely,  and  not  to  allege  more  than  is 
necessary,  for  where  the  actionable  quality  of  the  publication  de- 
pends wholly  on  its  connection  with  collateral  matter,  a  variance  in 
proof  of  those  matters  has  frequently  been  held  to  be  fatal. 

Where  the  words  are  actionable  in  reference  to  the  special  char- 
acter of  the  plaintiff,  as  a  physician,  barrister,  clergyman,  or  trades- 
man, a  prefatory  averment  of  such  his  character  and  situation  is  of 
course  in  all  cases  essential. 

In  the  description  of  the  special  character  in  which  the  plaintiff 
sues,  some  nicety  is  to  be  observed,  in  not  averring 
[  *401  ]  more  than  is  necessary  ;  *for,  since  the  averment  of 
character  is  material,  the  plaintiff  upon  the  trial  will  be 
bound  to  prove  it,  with  all  the  circumstances  with  which  the  de- 
scription in  the  declaration  is  encumbered,  though  a  much  more 
simple  one  might  have  sufficed. 

In  an  action  for  words,  the  plaintiff  (?/)  declared  that  he  was  in 
medecinis  doctor  ;  and  it  was  moved  in  arrest  of  judgment,  because 
he  did  not  shew  that  he  was  licensed  by  the  College  of  Physicians, 
or  that  he  was  a  graduate  of  one  of  the  universities  according  to 
the  statute  (2).  But  Bankes,  C.  J.  and  Crawley,  J.  were  of  opin- 
ion that  the  act  was  a  general  one,  which  need  not  be  pleaded. 

And  even  had  the  statute  been  a  private  one,  it  seems  that  the 
plaintiff  in  such  an  action  would  not  be  bound  to  set  out  his  title, 
since,  in  general,  an  action  on  the  case  against  a  wrong  doer  for  a 
disturbance,  it  is  sufficient  for  the  plaintiff  to  allege  his  right  gen- 
erally, without  showing  a  title  (a). 

(y)  Dr.  Brownlow's  case,  Mar.  116.  pi.  3.     1  Via.  Ab.  539. 

(z)  14  H.  8,  c.  5. 

(a)  2  Vent.  292.     Cro  J,  43.  123.     Com.  Dig.  Pleader,  c.  39. 


EXTRINSIC  FACTS— SPECIAL  CHARACTER.    402 

And  in  an  action  brought  by  a  physician,  it  is  suffi- 
cient to  aver  (5)  that  he  had  used  and  exercised  'tho     [  *402  ] 
profession  of  a  physician  ;  but  if  he  \vere  to  aver  that 
he  was  a  physician,  and  had  duly  taken  the  degree  of  doctor  of 
physic,  he  would  at  all  events  be  required  to  prove  his  de^^ree  as 
stated, (c)  ;  and  if  he  were  unable  to  prove  it,  he  would  fail. 

But  though  the  plaintiff  need  not  aver  how  he  came  by  his  title, 
he  must  describe  it  in  apt  terms.  Thus,  in  an  action  brought  by  a 
barrister,  he  ought  to  aver  that  he  is  liomo  consiliarius ;  and  it  is 
not  sufficient  to  say  that  he  is  eruditus  in  lege  (cZ). 

It  was  formerly  held,  that  it  was  necessary  for  a  tradesman  (e) 
to  aver  in  an  action  for  words  of  his  occupation  or  trade,  that  he 
got  his  living  by  buying  and  selling  ;  but  this  arose  from  the  idea, 
that  the  words,  to  be  actionable,  must  import  bankruptcy,  and  must 
be  applied  to  a  person  who  was  liable  to  the  statutes  of  bankruptcy, 
which  has  long  been  exploded  (/)  :  it  is  sufficient  to  aver  that  the 
plaintiff  exercised  the  trade,  and  derived  profit  from  it. 

Next  it  should  appear  that  the  special  character  *be-  [  '403  J 
longed  to  the  plaintiff  at  the  time  of  the  publication. 
So  little  precision  has  been  required  as  to  this  statement,  that  it  has 
been  hdd  that  the  averment  by  the  plaintiff,  that  he  is  of  such  a 
trade,  or  has  exercised  it  for  divers  years  ( (7),  without  saying  ultimo 
et  jam  elapsos,  or  that  he  is  a  freeman  exercising  the  art  or  mystery 
of  a  linen-draper  for  the  space  of  five  years  past,  or  that  he  has 
been  an  attorney  (7<)  for  divers  years  now  elapsed,  was  sufficient, 
without  an  express  averment  that  he  was  such  ac  the  time  the  words 
were  spoken,  since  it  is  not  to  be  presumed  that  a  man  alters  his 
trade  or  profession. 

In  the  case  of  JDoddv.  Bohin son  (f),  the  plaintiff  declared  that 
he  was  inducted  into  a  parsonage  in  Ireland,  and  executed  the  office 

(b)  8  T.  R.  305.     (c)  8  T.  R.  303.     1  N.  R,  196.     2  Buls.  230. 
{d)  1  Vin.  Ab.  539.  pi.  2.     According  to  Coke,  C.  J.  the  technical  descrip- 
tion is  homo  consiliarius  et  in  jure  peritus. 

(e)  Sid.  299.     1  Vin.  Ab.  539.  (/)  Vide  supra,  134,  135. 

{g)  Tulhill  t».  Milton,  Yel.  159.     This  was  after  verdict. 

(A)  2  Roll.  R.  84.     1  Vin.  Ab.  538. 

(i)  All.  63.  64.     1  Via.  Ab.  538.  note  to  pi.  3. 

Vol.  I.  66 


403  CIVIL  REMEDY— DECLARATION. 

of  pastor  for  four  years  after.  It  was  moved  in  arrest  of  judgment 
that  be  did  not  aver  that  he  was  a  parson  at  the  time  of  speaking 
the  ^yords. 

But  the  court  said,  it  should  be  intended  that  he  continued  parson 
because  he  had  a  freehold  in  the  parsonage  during  his  life. 

In  the  case  of  Tuthill  v.  3Iilton  {k},  the  court  said,  that  an  ac- 
tion for  words  which  affect  the  plaintiff  in  his  office  which 
[  *404  ]  he  holds  during  pleasure,  *  it  must  be  expressly  averred 
that  he  was  in  the  office  at  the  time  the  words  were  pub- 
lished ;  but  that  if  the  words  relate  to  his  profession  or  trade,  it  is  suffi- 
cient to  aver  that  he  has  for  some  years  past  exercised  the  profes- 
sion or  trade,  for  that  it  shall  not  be  intended  that  he  has  discontinued 
such  profession  or  trade. 

But  in  the  subsequent  case  of  Collis  v.  Malin  (0,  where  the 
plaintiff  declared  that  he  had,  for  a  great  while,  used  the  trade  of 
buying  and  selling  cattle,  and  that  the  defendant  said  of  him,  "  Thou 
art  a  bankrupt,"  after  verdict  for  the  plaintiff,  judgment  was  arrest- 
ed. 

After  verdict,  indeed,  if  the  continuance  can  be  collected  from 
any  averment  or  circumstances,  the  want  of  a  precise  and  technical 
allegation  will  be  cured. 

As,  where  the  plaintiff,  after  alleging  that  he  was  a  justice  (m) 
of  the  peace  for  the  county  of  Leicester,  for  divers  years,  averred 
that  the  defendant  spake  these  words  of  him,  being  a  justice  of  the 
peace. 

So  the  continuance  may  be  collected  from  the  words  themselves  ; 
as  if  the  defendant  say  of  an  attorney,  that  "  he  plays  with  both 

hands  (w)." 
[  *405  ]         *It  seems,  in  general,  to  be  sufficient  to  allege  general- 
ly that  the  plaintiff  was  a  physician,  barrister,  or   attor- 
ney, at  the  time  of  the  alleged  injury,  without  more. 

It  is  unnecessary  to  aver  that  the  plaintiff  has  qualified  himself  to 

(A)  Cro.  Jac.  222.     Yelverton  159. 

(Z)  Cro.  Car.  282.    See  also  2  Roll.  84.     Dan.  170. 

(m)  Beaumond  v.  Hastings,  Cro.  J.  240.  (n)  2  Roll.  85. 


EXTRINSIC  FACTS— AVERMENT  OF.  405 

act  in  the  situation  or  office,  in  respect  of  -which  he  is  slandered,  ac- 
cording to  the  enactments  of  any  statute  (o). 

Where  the  words  or  libel  derive  their  injurious  quality  from  ex- 
trinsic circumstances,  which  are  averred  upon  the  record,  it  is  ob- 
vious that  the  allegations  by  which  the  words  or  libel  are  applied  to 
Buch. extrinsic  subject  matter,  become  descriptive  of  the  nature  of 

the  injury. 

And,  consequently,  that  a  material  variance  in  proof  from  such 

averments  must  be  fatal. 

Where  the  plaintiff  stated  that  he  was  the  proprietor  and  editor 
of  a  newspaper  calumniated  by  the  defendant,  it  was  held  to  be  in- 
sufficient to  prove  merely  that  he  was  the  proprieter  (p). 

Where  the   declaration  stated  that  the  plaintiff  was  an  attorney 
of  the  Court  of  King's   Bench,  and  had  been  employed  by  the  de- 
fendant, as  his  attorney,  to  defend  an  action,  wherein 
one  *G.  W.  L.  had  been  the  plaintiff  and  the  present  de-     [  *406  ] 
fendant  had  been  the  defendant,  and  the  words,  "  I  have 
got  rid  of  a  rogue  in  Willey,  and  I  have  got  rid  of  a  bigger  rogue 
in   Parry  "  (the  plaintiff),  were  alleged  to  have  been  spoken  of 
the  plaintiff's  conduct  in  that  cause  ;  it  was  held,  that  as  the  words 
-were  laid  as  spoken  of  the  plaintiff,  in  the  conduct  of  a  certain  ac- 
tion, that  action  was  the  ground  work  of  the  inquiry,  and  that  its 
existence  ought  to  be  proved  (q). 

In  an  action  (r)  for  a  libel  on  a  constable,  alleged  in  both  counts 
of  the  declaration  to  have  been  published  of  and  concerning  his  con- 
duct in  the  apprehension  of  persons  stealing  a  dead  body,  it  was 

(o)  See  Hartley  v.  Herring,  8  T.  R.  131. 

(p)  Herriot  v.  Stuart,  4.  Esp.  C.  437.  Ld.  Kenyon,  C.  J.  See  also  Stevens  v. 
Aldrid-e,  5  Price  234.  R.  v.  Shaw,  1  Leach  C.  C.  L.  79.  2  East's  P.  C.  580. 
R.  r.  Ellis,  Russell  and  Ryan,  188.  Sellers  i^.  Till,  4  B.  &  C  G55.  But  see 
Lewis  V.  Walter,  3  B.  &  C.  138.      Supra  398. 

{q)  Parry  v.  Collis,  5  Esp,  C  339.  And  it  was  held,  that  it  was  not  sufficient 
to  show  that  the  costs  had  been  levied  and  paid,  and  that  all  the  papers  had 
been  given  up  to  the  defendant,  and  that  notice  had  been  given  to  the  defendant 
to  produce  all  papers,  &c.  Lord  Kenyon  said,  that  he  presumed  that  the  roll 
had  been  carried  in,  to  which  the  plaintiff  might  have  had  access,  and  given  a 
copy  in  evidence.  (r)  Teesdale  v.  Clement,  1  Chitty,  603. 


406  CIVIL  REMEDY— DECLA.RATION. 

averred,  in  what  that  conduct  had  consisted,  viz.  that  he  had  carried 
that  body  to  Surgeon's  Hall :  and  it  was  held  to  be  necessary  to 
prove  the  introductory  allegation,  inasmuch  as  it  was  material  to  the 
defamatory  character  of  the  libel  itself  (s). 

But,   on   the    other    hand,    the    omission    to   prove 
[MOT  ]     *facts  unnecessarily  alleged,  will  not  be  fatal,  unless  by 
the  form  and  mode  of  pleading  they  have  been  made 
descriptive  of  that  which  is  material. 

An  information  alleged  that  the  king  had  issued  a  particular 
proclamation,  and  also  averred,  that  on  occasion  of  that  proclima- 
tion,  divers  addresses  had  been  presented  to  his  Majesty  by  divers 
of  his  subjects  ;  the  information  charged  the  defendant  with  a  pub- 
lication with  the  intent  to  bring  the  said  proclamation  into  contempt, 
but  did  not  refer  to  the  addresses ;  and  it  was  held  to  be  necessary 
to  prove  the  fact,  that  sucli  a  proclamation  had  i)een  issued  (t} ; 
but  it  seems  that  it  was  unnecessary  to  prove  that  any  addresses 
had  been  presented  (it). 

In  an  action  on  the  case  for  exhibiting  an  inscription  tending  to 
defame  the  plaintiff  as  the  keeper  of  a  brothel,  the  declaration  con- 
tained a  prefatory  allegation,  that  the  plaintiff  carried  on  business 
as  a  retailer  of  wines,  but  it  was  held  that  proof  of  the  fact  was 
unnecessary,  there  being  no  colloquium  of  the  trade  (a;). 

And  although  the  words  or  libel  be  alleged  to  have  been  spoken 
and  published  of  and  concerning  subject  matters  pre- 
[  *408  ]  viously  alleged,  yet  a  variance  in  the  omission  to  *prove 
the  whole  of  such  previous  allegations,  will  not  be  ma- 
terial, provided  these  allegations  be  of  a  divisible  nature,  and  those 
wh'ch  are  not  proved  be  not  material  to  the  defamatory  character 
of  the  libel  itself.  For  the  allegation  is  not  descriptive  of  the 
words  or  libel,  but  of  the  nature  of  the  injury ;  and  if  the  several 
matters  in  reference  to  which  the  libel  is  alleged  to  have  been  pub- 
lished, be  cumulative  and  divisible,  so  also  the  application  of  the 
libel  to  such  subject  matters,  and  the  injury  arising  from  that  appli- 
cation may  be  considered  to  be  divisible. 

(s)  See  the  observations  of  Abbott,  C.  J,  upon  this  case,  3  B.  &  C.  124. 
(0  R.  V.  Holt,  5  T.  R.  436.  (u)  Pgr  Buller  J.  ib. 

(x)  Spull  V.  Massey,  2  Starkie  C.  559. 


EXTRINSIC  FACTS— DECLARATION.  409 

The  declaration  alleged  the  publication  of  a  libel,  of  and  con- 
cerning the  plaintiff,  and  also  of  and  concerning  the  plaintiff  in 
his  business  or  profession  of  an  attorney,  and  the  plaintiff  having 
failed  in  proving  that  he  had  either  taken  out  his  certificate,  or  prac- 
tised in  the  year  in  which  the  libel  was  published,  he  was  in  con- 
sequence nonsuited  ;  but  it  was  afterwards  decided,  by  the  Court 
of  King's  Bench,  that  the  allegation  was  not  descriptive  of  the 
libel,  and  consequently,  that  there  was  no  material  va- 
riance (?/).     So,  where  the  declaration  alleged  that  *the     [  *409  ] 

plaintiff  was  vestry  clerk  of  the  parish  of  M 3  ;  that, 

whilst  he  was  vestry  clerk,  certain  prosecutions  were  carried  on 
against  B.  of  certain  misdemeanors,  and  that  in  furtherance  of  such 
proceedings,  and  to  bring  the  same  to  a  successful  issue,  certain 
sums  of  money,  belonging  to  the  parishioners  were  applied  in  dis- 
charge  of  the  expenses ;  and  that  the  defendant,  to  cause  it  to  be 
suspected  that  the  plaintiff  had  fraudulently  applied  money  belong- 
ing to  the  parishioners,  falsely  and  maliciously  published  of  and  con- 
cerning the  plaintiff,  and  of  and  concerning  his  conduct  in  his  office 
of  vestry  clerk,  and  of  and  concerning  the  matters  aforesaid,  a  cer- 
tain libel,  &c.  It  appeared  upon  the  trial,  upon  the  production  of 
the  libel,  that  the  imputation  was,  that  the  plaintiff  had  applied 
the  parish  money  in  payment  of  the  expenses  of  the  prosecution 
after  it  had  terminated.  And  it  was  held,  that  the  variance  was 
unimportant ;  for  it  was  immaterial  to  the  character  of 
•the  libel,  whether  the  money  were  so  applied  before  or  [  *410  ] 
after  the  termination  of  the  prosecution  (g). 

(y)  Lewis  v.  Walter,  3  B.  &  C.  138.  But  where  the  plaintiff  alleged  that 
he  was  treasurer  and  collector  of  certain  tolls,  and  that  the  defendant  published 
of  him,  as  such  treasurer  and  collector,  "  You  are  gathering  the  toll  for  your 
own  pocket,"  thereby  then  and  there  meaning  that  the  plaintiff,  so  being  such 
treasurer  and  collector,  was  guilty  of  collecting  tolls  for  the  purpose  of  im- 
properly applying  them  to  his  own  use  ;  the  plaintiff  having  proved  that  he  was 
treasurer  only,  and  not  collector,  the  variance  was  considered  fatal,  and  the 
court  of  K.  B.  refused  to  set  aside  a  nonsuit.  For  the  words  were  applicable  to 
the  plaintiff  rather  in  his  character  of  collector,  than  of  treasurer  ;  the  plaintiff 
was  bound  to  prove  that  the  words  were  applicable  to  him,  in  the  manner  which 
he  himself  had  pointed  out  by  his  innunendo.     Sellers  v.  Till,  3  B-  &  C.  655. 

(z)  May  V.  Brown,  3  B.  &  C.  113.     In  the  case  of  Lord  Churchill  v.  Hunt, 


410  CIVIL  REMEDY— DECLARATION. 

The  plaintiff  declared  that  he  bad  been  a  wool-stapler  at  Ciren- 
cester, and  that  at  the  time  when  the  words  were  spoken  he  was  a 
brewer  at  Oxford,  and  that  the  defendant  spoke  of  him,  as  such 
trader,  these  words,  "  Mr.  H.  (the  plaintiff)  and  B.  have  both  been 

bankrupts  ;  Mr.  H.  at  Cirencester ;"  the  plaintiff  proved 
1^  *411  ]     that  he  was,  when  *the  words  were  spoken,  a  brewer  at 

Oxford  ;  but  gave  no  evidence  of  his  having  been  a  wool- 
stapler,  and  proved  also  that  the  defendant  spoke  the  words,  "He 
was  a  bankrupt  at  Cirencester,"  and  it  was  held  that  the  evidence 
supported  the  allegations,  for  a  trader  at  Oxford  might  have  been  a 
bankrupt  at  Cirencester  (a). 

With  respect  to  words  published  in  a  foreign  language,  and 
phrases  or  terms  whose  use  is  confined  to  a  particular  district  or 
class  of  people,  and  not  generally  understood,  it  has,  as  already 
observed,  been  said,  that  no  averment  as  to  their  meaning  is  neces- 
sary (6).  This  doctrine  seems  nevertheless  a  little  extraordinary, 
since,  without  such  an  explanation,  the  question  of  law  does  not  ap- 
pear open  upon  the  record  (c).  Suppose  for  instance,  an  action  to 
be  brought  for  calling  the  plaintiff  Jc?one/' ((^),  without   any  aver- 

2  B.  &  A.  685,  the  declaration  alleged  that,  before  the  publication  of  the  libel, 
a  carriage  in  which  E.  S.  was  riding-,  was  passing  on  a  certain  highway,  and 
that  the  plaintiff  was  also  driving  another  carriage,  and  that  it  happened  with- 
out any  negligence,  default,  or  furious  driving  on  the  part  of  the  plaintiff,  that 
the  two  carriages  came  in  contact  together,  whereby  the  carriage  in  which  the 
said  E.  S.  was  riding,  was  accidentally  overturned,  and  the  said  E.  S.  was  in- 
jured, and  that  the  defendant  published  a  libel  of  and  concerning  the  plaintiff, 
and  of  artd  concerning  the  said  accident.  The  jury  found,  on  an  issue  taken  on 
a  special  justification  to  part  of  the  alleged  libels,  that  the  accident  had  been 
occasioned  by  the  hard  and  furious  driving  of  the  plaintiff,  and  found  a  verdict 
with  £-'50  damages  as  to  the  other  part  of  the  libels  which  was  not  justified  ; 
upon  a  motion  to  enter  a  verdict  for  the  defendant,  on  all  the  issues,  it  was  con- 
tended that  the  allegation  that  it  happened  without  furious  driving  on  ihe  part 
of  the  plaintiff,  was  part  of  the  description  of  the  accident.  But  the  court  held 
that  the  averments  were  divisible,  and  that  the  allegation  was  no  part  of  the 
description  of  the  accident. 

(a)  Hall  V.  Smith,  1  M.  &  S.  287.  (i)  See  1  Will.  Saund,  n.  242. 

(c)  Hob.  126.     1  Roll.  Ab.  86.    Zenobio  v.  Axtel,  6  T.  R.  162. 

{i)  In  Welch  signifying  perjured. 


EXTRINSIC  FACTS— COLLOQUIUM.  411 

ment  of  the  meaning  of  the  term,  and  that  the  defendant  demurred  ; 
since  an  acquaintance  Avith  the  Welch  tongue  forms  no  part  of  legal 
education  or  practice,  the  judges  ^'ould  be  placed  in  a  strange 
situation  if  they  were  bound  to  give  their  judgment  upon 
the  legal  meaning  of  the  words  ;  but  an  averment,  as  *to  [  *412  ] 
the  meaning,  would  preclude  all  doubt,  since,  by  his  de- 
murrer, the  defendant  would  allow  that  the  meaning  of  the  word 
was  perjured  or  forsworn,  as  alleged  in  the  declaration,  and  judo-- 
ment  would  be  given  accordingly. 

If  the  plaintiff  undertake  to  translate,  and  render  a  forei<m  word 
of  an  actionable  sense,  by  an  English  one  whose  meaning  is  not  ac- 
tionable, the  declaration  will  be  defective. 

In  the  case  of  Ross  v.  Lawrence,  the  plaintiff  averred  that  the 
Welch  words  Ded  ingues  Will.  Hoss  in  mudon,  signified  that  the 
plaintiff  was  forsworn,  though  in  fact  they  signified  that  he  was 
'perjured;  and,  after  a  verdict  for  the  plaintiff,  judgment  was  ar- 
rested (e). 

In  an  action  for  slander  of  the  plaintiff's  title,  it  is  sufficient  to 
aver  his  right  generally,  without  setting  forth  his  title.  Thus  it  has 
been  held  to  be  sufficient  to  aver  that  the  plaintiff  was  lawfully 
possessed  of  certain  copper  mines,  situate,  &c.  and  of  certain  ore 
gotten  and  to  be  gotten  from  the  said  mines,  &c.(/). 

In  the  next  place  it  is  necessary  to  connect  the  publication 
with  the  previous  facts,  by  means  of  an  appropriate  averment  (</). 

Where  the  words  are  actionable,  affecting  the  plain- 
tiff *in  a  special  character,  an  averment  thut  they  were     [  *313  ] 
applied  to  him  in  that  particular  character  is  necessary      • 
(/i),  unless  that  application  necessarily  appear  from  the  words  them- 
selves ;  in  which  case,  the  general  allegation  that  they  were  spoken 
concerning  the  plaintiff,  is  sufficient. 

(e)  Sty.  263.     Ross  v.  Lawrence.  (/)  Rowe  v.  Roach,  1  M.  &  S.  304. 

{g)  To  avoid  circumlocution,  the  terra  colloquium  is  frequently  used,  not  in  its 
strict  sense  as  denoting-  a  conversation  on  the  subject  of  the  matters  previously 
averred,  but  as  a  general  averment,  that  the  publication  was  made  of  and  con- 
cerning those  facts. 

(A)  Savage  V.  Robery,  2  Salk.  694.  Savile  v.  Jardine,2  H- Bl.  531.  Burnett 
V.  Wells,  12  Mod.  420.  Str.  1169.  3  Salk-  326.  Ld.  Ray.  610.  8  Mod.  271.  Cro, 
Car.  417. 


413  CIVIL  REMEDY— DECLARATION. 

The  defendant  said  of  a  tradesman  (i),  "  He  is  a  sorry  pitiful 
fellow,  and  a  rogue  ;  be  compounded  his  debts  at  five  shillings  in 
the  pound ;"  and  the  declaration  was  held  to  be  good,  without  an 
express  colloquium  of  the  trade. 

So,  -where  the  words  published  of  a  tradesman  Qc)  were,  "  Have 
a  care  of  him,  do  not  deal  with  him,  he  is  a  cheat,  and  will  cheat 
you  ;  he  has  cheated  all  the  farmers  at  Epping,  and  dares  not  shew 
his  face  there,  and  now  he  is  come  to  cheat  at  Hatfield."  And  the 
court  said,  the  words  themselves  supply  a  colloquium  ;  they  appear 
to  be  spoken  of  his  trade. 

So,  where  the  words  spoken  of  a  justice  of  the  peace 
[  *414  ]  were,  "  I  have  been  often  with  Sir  John  *Isham  for 
justice,  but  could  never  get  any  thing  at  his  hands  but 
injustice  ;"  it  was  held  that  the  words  were  actionable  without  any 
colloquium,  and  that  the  court  would  intend  that  the  words  were 
spoken  of  him  as  a  justice,  and  not  as  a  private  man  (Z). 

So,  where  the  defendant  said  of  an  attorney,  "  He  is  a  common 
barretor ;"  it  was  held  to  be  unnecessary  to  aver  that  the  words 
were  spoken  of  the  plaintiff  in  his  profession,  for  the  court  would 
intend  it,  and  that  the  words  were  to  be  construed  seeiindum  con- 
ditionem  personarum  of  whom  they  were  spoken. 

So,  where  (m)  the  words  spoken  to  a  merchant  were,  "  He  is  not 
worth  a  groat,  he  is  XlOO  worse  than  nought." 

So,  where  the  defendant  said  to  a  physician  (w),  "Thou  art  a 
drunken  fool  and  an  ass  ;  thou  wert  never  a  scholar,  and  art  not 
worthy  to  speak  to  a  scholar;  "  the  words  were  held  to  be  actiona- 
ble, though  no  colloquium  was  laid  of  the  plaintiff's  profession. 

In  general,  where  facts  extrinsic  of  the  words  and  of  the  plain- 
tiff's character  are  necessary  to  support  the  action,  the 
[  *415  ]     plaintiff  must  aver  that  *the  publication  was  made  in  re- 
ference to  those  facts. 

The  declaration  (o)  stated  that  the  plaintiff,  a  constable  of  D., 
was  sworn  before  the  justices  at  their  quarter  sessions  concerning  an 

(i)  Lord  Raymond,  1480.     Stanton  u.  Smith. 

(k)  2  Lev.  G2.  (/)  Cro.  Car.  15.  192.  459.     Cro.  J.  557.     1  Lev.  280. 

(m)  Cro.  Car.  265.  (n)  Cro.  Car.  270. 

(o)  Drake  ti.  Corderoy,  in  enor,  Cro  Car-  288. 


EXTRINSIC  FACTS— COLLOQUIUM.  415 

affray  made  bj  the  defendant  upon  one  F.  and  that  the  defendant 
then  and  there  in  the  said  court  and  in  the  presence  of  the  justices, 
eaidj  he  (innuendo  the  plaintiff)  is  forsworn,  and  it  was  held,  that 
the  declaration  was  bad  ■without  a  colloquium  of  the  oath  so  taken, 
because  it  was  necessary  for  the  declaration  to  shew  that  the  words 
intended  a  false  oath  in  a  court  of  record. 

The  declaration  (js)  stated,  that  the  plaintiff  had  put  in  an  an- 
swer upon  oath  to  a  certain  bill  filed  against  him  in  the  court  of  ex- 
chequer by  the  defendant,  and  that  the  latter  in  a  certain  discourse 
which  he  then  and  there  had  with  one  R.  W.,  the  plaintiff's  servant 
said,  "  I  have  no  doubt  you  will  forswear  yourself,  as  well  as  your 
master  (the  plaintiff)  has  done,  before  you,"  meaning  and  insinuat- 
ing thereby  that  the  plaintiff  had  perjured  himself  in  what  he  had 
sworn  in  his  aforesaid  answer  to  the  said  bill  so  filed  against  him  as 
aforesaid. 

In  another  count,  the  words  spoken  by  the  defendant  *to  the  said 
R,  AV.  the  plaintiff's  servant,  *were  laid  thus:  "Your 
master  (meaning  the  plaintiff)  has  both  cheated  people  [  *416  } 
out  of  their  wages,  and  forsworn  himself;"  thereby 
meaning  that  the  said  plaintiff  had  perjured  himself  in  the  aforesaid 
answer,  so  put  in  by  him  to  the  bill  so  filed  against  him  as  aforesaid. 
It  was  held,  after  verdict,  that  both  these  counts  were  bad,  on  the 
ground  that  there  was  no  colloquium  laid  of  the  plaintiff's  answer  to 
the  bill  in  chancery,  and  that  it  did  not  appear  that  the  words  were 
spoken  in  relation  to  that  answer,  and  that  without  such  an  aver- 
ment the  innuendo  was  unwarranted. 

And  in  general,  as  prefatory  averment  of  the  defendant's  inten- 
tion to  injure  the  plaintiff,  or  to  impute  a  particular  charge,  though 
it  be  coupled  with  a  subsequent  innuendo  to  the  same  effect,  will  not 
supply  the  want  of  an  express  averment,  that  the  words  were  spoken, 
or  libel  published  of  and  concerning  the  plaintiff,  or  other  subject 
matter  which  is  essential  to  the  slander  (g). 

(p)  Hawkes  v.  Hawkey,  8  East.  427. 

{q)  R.  V.  Marsden,  4  M.  &  S.  164,  where  it  was  held  to  be  insufficient  in  an 
indictment,  to  aver  that  the  defendant  published  the  libel  with  intent  to  vilify 
the  prosecutor,  &c.  without  an  express  averment  that  the  libel  was  published 

Vol  I.  57 


417  CIVIL  REMEDY— DECLARATION. 

[  •417  ]  •The  averment  ought  to  extend  to  the  -whole  of  the 
prefatory  matter  necessary  to  render  the  words  actiona- 
ble. The  plaintiff  (y)  declared,  that  some  evil  persons  unknown, 
had  feloniously  shorn  the  sheep  of  C,  and  that  there  being  a  com- 
munication between  the  defendant  and  another,  concerning  the  shear- 
ing of  those  sheep,  the  defendant  said,  "  I  do  not  know  who  did 
shear  the  sheep ;"  and  being  asked  who  it  was,  he  replied,  that  it 
was  the  plaintiff,  innuendo  fdonice,,  and  Houghton  and  Dodeiige, 
Justices,  against  the  opinion  of  Croke,  J.  held,  that  the  words  were 
not  actionable,  since  the  colloquium  was  of  the  shearing  of  the 
sheep  only,  and  not  of  the  felony. 

It  has  already  been  seen  that  the  danger  of  a  variance  may  often 
be  incurred  by  the  indiscreet  averment  of  too  much  prefatory  mat- 
ter, and  an  improper  application  of  the  words  or  libel  to  such  facts. 
It  is,  however,  to  be  observed,  that  although  more  than  is  necessary 
be  previously  alleged,  yet  that  if  the  colloquium  or  averment  apply 
the  words  or  libel  to  so  much  only  of  the  previous  matter  as  is 
proper  and  necessary,  a  variance  in  not  proving  the  rest  will  nob  bo 
material. 

Thus,  where  the  plaintiff  averred  that  he  followed  two  trades,  and 
that  the  defendant,  intending  to  injure  him  in  those  sev- 
[  *418  ]  eral  trades,  in  a  certain  *discourse  which  he  had  of  and 
concerning  the  said  plaintiff  in  one  of  his  trades,  spoko 
the  words  set  out,  it  was  held  that  though  the  plaintiff  failed  in 
proving  that  he  followed  both  trades,  yet  that,  having  proved  that  he 
followed  the  trade  concerning  which  the  words  were  alleged  to  have 
been  spoken,  he  was  entitled  to  recover  (/). 

INNUENDO. 

Next,  with  respect  to  the  nature  and  office  of  an  innuendo.      An 

of  and  concerning  the  prosecutor,  although  the  libellous  expressions  were  di- 
rectly applied  to  him  by  means  of  an  innuendo.  And  see  Johnson  v.  Aylmer, 
Cro  J.  1-26,    Lowfield  v.  Bancroft,  Sir.  924.    R.  v.  Alderton,  Say.  180. 

(r)  3  Buls.  83.  Helly  v.  Hender. 

(s)  Figgins  V.  Cogswell,  3  M.  «&  S.  369.  Note  that  this  was  previous  to  the 
case  of  Lewis  v.  Walter,  3  B.  &  C.  138,  where  it  was  held  that  such  an  aver= 
ment  is  divisible- 


INNUENDO.  -  418 

innuendo  may  be  defined  to  be  an  averment  -whicli  explains  the 
meanin<^  of  the  defendant's  publication  by  reference  to  facts  pre- 
viously ascertained  by  averment  or  otherwise  (0- 

An  innuendo  is  frequently  necessary,  -where  the  language  of  the 
defendant  is  apparently  innocent  and  inoffensive,  but  where,  never- 
theless, by  virtue  of  its  connection  with  known  collateral  circumstan- 
ces, it  conveys  a  latent  and  injurious  imputation. 

Where  from  the  ambiguity  of  the  defendant's  expressions,  it  is 
doubtful  who  was  meant,  it  is  the  proper  office  of  the  innuendo  to 
render  the  allusion  clear,  by  specifically  pointing  out  the 
meaning.     As  where  but  one  or  two  letters  of  the  *name     [  *419  ] 
are  expressed,  or  the  plaintiff  is  libelled  under  a  fictitious 
cr  borrowed  name,  or  where  the  libel  is  couched  under  a  fable  or 
allegory,  whose  tendency  and  meaning  it  is  necessary  to  explain  by 
reference.     Thus  in  the  case  of  Sir  Miles  Fleetiooodv.  Curl  (m), 
the  plaintiff  was  receiver  of  the  court  of  wards,  and  the  words  were 
laid  in  the  declaration,  with  an  innuendo,  as  follows  :  "  Mr.  Deceiv- 
er (meaning  the  plaintiff)  hath  deceived  the  king."   It  was  assigned 
for  error,  that  the  innuendo  could  not  be  supported,  but  the  court 
held  that  it  was  well  apphed. 

So  in  an  information  against  Clerk  (.r),  for  publishing  a  libelin 
"  Mist's  Journal,"  it  was  shewn  by  proper  averments  and  innuen- 
dos,  that  in  a  pretended  piece  of  Persian  history,  the  king  and  sev- 
eral other  members  of  the  royal  family  had  been  libelled,  and  that 
the  king  was  represented  under  that  of  the  name  of  Merewits,  tho 
Queen  under  that  of  Sultana,  and  that  the  character  of  the  young 
Sophia  was  intended  for  the  Pretender. 

In  Baxter's  case  (3/),  it  was  shewn  that  by  the  word  Bishops,  the 
Bishops  of  England  (s)  -n'cre  meant ;  in  the  King  v. 
Franklin,  that  by  "  ministers,"  *were  meant  the  minis-     [  '420  ] 
ters  of  the  King  of  England  (a). 

In  an  action  for  charging  the  plaintiff  with  having  said  that  he 

(0  2  Salk.  513.     1  Lord  Ray.  256.  12  Mod.  139.  i  Will.  Saund.  243. 
(u)  Cro.  J.  557.     2  Roll.  Rep.  148. 

(I)  Barnard  K.  B.  304.     Dig.  L.  L.  24.  (y)  3  Mod.  69. 

(z)  3  Bac.  Ab.  454.  («)  "  ^od.  99. 


420  CIVIL  REMEDY— DECLARAflON. 

could  see  no  probability  of  the  -war's  ending  with  Franco  until  the 
little  gentleman  on  the  other  side  of  the  water  (innuendo  the  Prince 
of  Wales)  was  restored  to  his  rights,  the  court  held,  that  this  Avas 
certain  enough,  even  without  an  innuendo. 

In  Tutchin's  case  (5),  the  introductory  part  of  the  information 
stated,  that  the  libel  was  written  concerning  the  rojal  navy  of  this 
kingdom,  and  the  government  of  the  said  navy.  One  part  of  the 
libel  was,  "  The  mismanagements  of  the  navy  (innuendo  the  royal 
navy  of  this  kingdom)  have  been  a  greater  tax  upon  the  merchants 
than  the  duties  raised  by  parliament."  And  it  was  held,  that,  "  the 
navy"  was  well  connected,  by  means  of  the  innuendo,  with  the  royal 
navy  mentioned  in  the  introductory  part. 

In  the  King  v.  Mathews  (c),  the  information  in  the  introductory 
part  charged  the  libel  to  have  been  written  "  Of  and  concerning 
the  Pretender,  and  concerning  his  right  to  the  crown  of  Great 

Britain." 
[  *421  ]  The  words  of  the  libel  were,  "  From  the  solemnity  *of 
the  Chevalier's  birth,  and  if  hereditary  right  be  any  rec- 
ommendation, he  has  that  to  plead  in  his  favour."  And  it  was  held 
that  the  innuendos  in  the  body  of  the  libel,  explaining  the  words  to 
mean  the  Pretender,  and  his  hereditary  right  to  the  crown  of  Great 
Britain,  were,  when  connected  with  the  previous  averments,  suflScient 
to  verify  the  charge. 

The  most  important  rule  of  law  relating  to  this  species  of  aver- 
ment is,  that  its  office  is  merely  to  explain  by  pointing  out  the  defend- 
ant's allusion,  and  that  it  can  in  no  case  be  allowed  to  introduce  new 
matter.  And  the  reason  for  this  is  a  most  substantial  one  ;  for  were 
it  otherwise,  there  would  bono  sufficient  and  distinct  averment  of  the 
existence  of  those  facts  which  in  point  of  law  are  essential  to  render 
the  words  actionable.  For  instance,  suppose  the  defendant  had 
said,  "  You  are  forsworn,"  which  words  would  not  be  actionable,  un- 
less spoken  (cZ)  with  reference  to  a  judicial  oath,  if  the  plaintiff  aver- 
red by  way  of  innuendo,  and  without  reference  to  antecedent  matter, 
meaning  thereby  "  that  he  the  said  plaintiff  was  forsworn  in  a  court 

(b)  5  St.  T.  590.     3  Ann.  1704. 

(c)  9  St.  T.  R.  682.  (d)  Holt  v.  Scholefield,  6  T.  R.  691. 


INNUENDO.  421 

of  record,"  or  meaning  thereby  "  that  he  the  said  plaintiff  was  per- 
jured ;"  the  averment  would  involve  a  question  of  law, 
and  the  jury  would  have  to  decide  upon  'evidence,  Avheth-  [  *422  "j 
erthe  forswearing  did  in  law  amount  to  perjury,  and  the 
question  would  not  be  open  to  the  court  upon  the  record  ;  and  be- 
sides this,  that  clearness  and  precision  would  be  wanting  which  is  es- 
sentia! to  a  legal  and  technical  statement  of  the  case. 

In  the  King  v.  Some  (g),  De  Grey,  C.  J.  observed,  "  In  the 
case  of  a  libel,  which  does  not  in  itself  contain  the  crime  without 
some  extrinsic  aid,  it  is  necessary  that  it  should  be  put  upon  tho 
record  by  way  of  introduction,  if  it  is  new  matter  ;  or  by  way  of 
innuendo,  if  it  is  only  matter  of  explanation.  For  an  innuendo 
means  no  more  than  the  words  '  id  est,^  '  scilicet,''  or  '  meaning,'  or 
*  aforesaid,'  as  explanatory  of  a  subject  matter  sufficiently  expressed 
before  ;  as  such  a  one,  meaning  the  defendant,  or  such  a  subject, 
meaning  the  subject  in  question." 

An  innuendo,  therefore,  cannot  extend  the  sense  of  the  words 
beyond  their  own  meaning,  unless  something  be  put  upon  the  record 
for  it  to  explain  [1]. 

As,  in  an  action  upon  the  case  against  a  man,  for  saying  of  an- 
other (/)  "He  has  burnt  my  barn ;"  the  plaintiff  cannot  there 
say,  "  innuendo  a  barn  with  corn,"  because  that  is  not 
*an  explanation  of  what  was  said  before,  but  an  addition     [  *423  ] 
to  it. 

But  if,  in  the  introduction,  it  had  been  averred  that  the  defend- 
ant had  a  barn  full  of  corn,  and  that  in  a  discourse  about  that  barn, 
the  defendant  had  spoken  the  words  charged  in  the  declaration  of 
the  plaintiff,  an  innuendo  of  its  being  the  barn  full  of  corn  would 
have  been  good  ;  for,  by  coupling  the  innuendo  in  the  libel  with  the 
introductory  averment,  "  his  barn  full  of  corn,"  it  would  have  made 
the  sense  complete. 

An  innuendo  can  in  no  case  supply  the  want  of  a  proper  collo- 
quium. 

(e)  2  Cowp.  683. 
(/)  Barhatn's  case,  4  Co.  20. 

[1]  Recognized  in  Van  Vechten  v-  Hopkins,  5  Johns.  R.  220  ;  McCiaaghry  v. 
Wetmore,  6  Id.  83  ;  and  Thomas  v.  Croswell,  7  Id.  271. 


423  CIVIL  REMEDY— DECLARATION. 

The  plaintiff  (<7),  in  the  first  count,  laid  these  words  as  spoken 
bj  the  defendant,  ''John  Holt  (meaning  the  plaintiff)  has  forsworn 
himself,  (meaning  that  the  plaintiff  had  committed  wilful  and  cor- 
rupt  peijiiry)."  After  a  general  verdict  for  the.  plaintiff  with 
entire  damages,  judgment  was  arrested,  on  the  ground  that  the 
words  in  the  first  count  were  not  in  themselves  actionable,  and  that 
the  count  contained  no  colloquium  or  averment  of  the  words  having 
been  spoken  of  a  forswearing  in  a  court  of  justice,  and  the  innuendo 

could  not  extend  their  meaning. 
[  *424  ]         In  the  case  of  the  King  v.  Alderton  (Ji)  the  *alleged 

libel  was  contained  in  an  advertisement,  reciting  certain 
orders  made  for  collecting  money,  on  account  of  the  distemper 
among  the  horned  cattle,  advertised  by  the  clerk  of  the  peace  for 
the  county  of  Suffolk;  and  it  charged,  that  by  these  ordeis  the 
money  collected  had  been  improperly  applied.  The  information 
stated  this  to  be  a  libel  upon  the  justices  of  Suffolk.  In  the  body 
of  the  libel  it  was  not  said,  "  by  the  order  of  the  justices,"  nor  did 
the  information  in  the  introductory  part  say  that  it  was  a  libel  of  and 
concerning  the  justices  of  Suffolk.  But  when  the  information  came 
to  slate  any  of  the  orders  in  the  advertisement,  it  added  this  innu- 
endo, "  meaning  an  order  of  the  justices  of  peace  for  the  county  of 
Suffolk"  but  these  innuendos  could  not  (it  was  held)  supply  the 
want  of  an  averment  in  the  introductory  part,  of  its  having  been 
wiitten  "  of  and  concerning  the  justices,"  because  they  were  not 
explanatory  of,  but  in  addition  to  the  former  matter.  And  the 
court  were  of  opinion  that  the  information  having  omitted  the  words 
"  of  and  concerning  the  justices"  in  the  introductory  part,  such 
omission  was  fatal,  and  judgment  was  accordingly  arrested. 

In  the  case  of  Hawkes  v.  Hawkey  (z),  already  refer- 
[  *425  ]     red  to,  it  Avas  decided  that  where  the  introductory  *mattcr 

has  been  properly  stated,  it  is  necessary  to  connect  the 
whole  publication  with  it  by  means  of  a  general  averment  that  it 
related  to  such  previous  matter,  and  that  it  was  not  sufficient  to  do 
it  by  means  of  an  innuendo  only. 

(5-)  Holt  V.  Scholefield,  6  T.  R.  691.  (A)  Say.  R.  280. 

(i)  8  East.  427. 


INNUENDO.  425 

Upon  motion  in  arrest  of  judgment,  Lord  Ellenborough,  C.  J. 
was  of  opinion,  that  it  might  be  collected  from  -what  Lord  C.  J.  Do 
Grey  said,  in  the  case  of  the  King  v.  Some,  speaking  of  Barham'3 
case  (/^),  that  he  conceived  an  introductory  averment  that  ihe  dc- 
fjndant  had  a   barn  full   of  corn,  and  also  an  averment  that  ihe 
defendant  spoke  the   -words  in   a   discourse  concerning  that  barn, 
necessary  to  warrant  the  innuendo  "  my  barn  full  of  corn."     Ilia 
Lordship  added,  "  If  a  broad  rule  has  been  laid  down  as  to  the 
mode  of  declaring,  in  this  species  of  action,  whether  properly  laid 
down  or  not,  in  the  first  instance,  it  is  better  to  abide  by  it,  than  to 
attempt  making  nice  distinctions.     The  only  peculiarity  in  this  case 
which  is  relied  upon,  as  distinguishing  it  from  the  current  of  auihor- 
ities  is,  the  prehminary  matter  averred  respecting  the  fact  of  the 
plaintiff  having  put  in  his  answer  to  the  bill  filed  in  the  exchequer ; 
and  the  question  is  whether  the  innuendo  alone  will  refer  the  words 
spoken  to  such  introductory  matter  so  as  to  make  it  nec- 
essary for  'the  plaintiff  to  prove  any  thing  which  he  must     [  *426  ] 
have  proved  had  a  colloquium  been  laid  ;  the  case  of 
Savage  v.  Rohery  seems  to  show  that  it  will  not." 

And  the  court  (0,  afcer  considering  the  case  of  the  King  v. 
Some,  gave  judgment  for  the  defendant. 

In  many  instances,  however,  an  innuendo  will  not  vitiate  the  pro- 
ceedings, though  new  matter  be  introduced  [a  «]. 

As,  where  the  matter  is  superfluous,  and  the  cause  of  action  is 
complete  without  it. 

The  plaintiff  alleged  (m),  that  the  defendant  addressed  these 
words  to  him,  "  Thou  art  a  rogue  and  a  rascal,  and  hast  killed  thy 
wile ;  innuendo  one  Elizabeth,  late  wife  of  the  plaintiff."  And  the 
plaintiff  had  judgment,  though  the  declaration  contained  no  prefatory 
averment  that  the  wife  was  dead. 

In  Shalmer  v.  Foster  and  Ms  wife  (n),  the  declaration  stated 
that  the  wife  of  the   defendant  spake  of  the  aforesaid  plaintiff  to 

(k)  4  Co.  20.  (l)  Cowp.  680. 

(a  a)  See  Archbishop  of  Tuara  v.  Robeson,  5  Bingh.  17.  See  also  p.  343 
Bupra,  note  [a  a]. 

(m)  WUner  v.  Hold,  Cro.  Car.  489.  (n)  Cro,  Car.  496, 


426  CIVIL  REMEDY— DECLARATION 

Ann  Rochester,  the  plaintiff's  mother,  these  words:  "  Where  is 
that  Ijing  thiefe,  thy  son  (innuendo  the  plaintiff),  he  hath  murdered 
my  aunt  (innuendo  one  Dorothy  Stoke,  the  defendants's 
[  *427  ]  aunt),  and  I  will  prove  *it."  After  verdict  for  the  plain- 
tiff, though  a  motion  was  made  in  arrest  of  judgment 
upon  another  ground,  no  objection  was  taken  to  the  innuendo  of  the 
plaintiff's  aunt. 

So,  where  the  words  were  laid(o),  "Thou  hast  robbed  the 
church"  (innuendo  the  church  of  St.  Alphage),  no  objection  was 
taken. 

In  Craft  v.  Boite  (jt?,)  the  words,  as  laid  in  the  declaration,  were, 
"  He  (meaning  the  plaintiff)  hath  stolen  two  hundred  pounds  worth 
of  plate  out  of  Wadham  College,"  (meaning  a  college  called  Wad- 
ham  College,  in  the  University  of  Oxford,)  though  the  declaration 
contained  no  previous  averment  of  Wadham  College,  in  the  Univer- 
sity of  Oxford.  It  is  suggested  by  the  learned  editor  of  Saun- 
ders' Reports,  that  the  innuendo  is  on  such  account  improper  ;  the 
objection,  however,  appears  to  be  rather  of  form  than  of  substance  ; 
and  probably  such  a  declaration  would  be  held  to  be  good,  on  general 
demurrer  or  after  verdict,  since  the  gist  of  the  action  is  the  charge 
of  stealing  from  Wadham  College,  which  is  entirely  unconnected  with 
the  situation  of  the  college  in  the  University  of  Oxford,  so  that  the 
innuendo  might  be  expunged  without  affecting  the  cause  of  action. 
*In  Roberts  v.  Cambden  (c[)  ^  the  defendant  said,  "  He 
[  *428  ]  (meaning  the  plaintiff)  is  under  a  charge  of  a  prosecu- 
tion for  perjury.  G.  AV.  had  the  attorney-general's 
directions  to  prosecute  ;"  and  an  innuendo  that  the  attorney-general 
for  the  county  palatine  of  Chester  was  meant,  was  rejected  as  sur- 
plusage. 

An  innuendo,  when  repugnant  or  insensible,  may  be  rejected  (r). 

The  record  of  Nisi  Prius  stated,  that  the  said  WiUiam  spoke  of 
the  said  James  these  scandalous  words  following  :  "  He  (innuendo 

(o)  Cro   J.  153.     1  Vin.  Ab.  512. 

{p)  1  Will.  Saun.  243.  {q)  9  East.  93. 

(r)  Cro  Car.  512.  See  also  R.  v.  Aylett,  1  T.  R.  63,  where  door  was  by 
the  innuendo  explained  to  mean  outer  door. 


INNUENDO.  428 

the  said  William)  is  a  thief,"  where  the  innuendo  should  have  been 
of  James.  After  a  verdict  for  the  plaintiff  it  was  held  that  he  was 
entitled  to  his  judgment,  since  the  innuendo  was  void,  and  an  appa- 
rent misprision. 

It  does  not,  in  any  case,  seem  necessary  that  the  innuendo  should 
in  terms  state  the  legal  inference  which  is  to  be  drawn  from  the 
publication,  as  connected  with  the  facts  stated  ;  its  office  seems  more 
properly  confined  to  mere  reference  of  the  defendant's  meaning  to 
previous  matter ;  and,  indeed,  such  an  averment  would  be  impro- 
per, since  the  actionable  nature  of  the  charge  is  a  matter 
of  law,  which  the  court  will  collect  from  *the  facts,  if  [  *429  ] 
they  warrant  such  a  conclusion  ;  and  if  they  do  not,  no 
innuendo  of  their  legal  effect  will  avail  to  render  them  actionable. 

Thus,  where,  from  the  circumstances,  it  appears  upon  the  whole 
that  the  defendant  intended  to  impute  a  charge  of  wilful  murder,  it 
is  unnecessary  for  the  plaintiff  to  assert,  by  way  of  innuendo,  that 
the  defendant  meant  to  impute  the  very  crime  of  murder. 

In  Peahe  v.  Oldham  (s),  in  error,  the  plaintiffs  declared,  that 
upon  a  colloquium  concerning  the  death  of  one  Daniel  Dolly,  tho 
defendant  said  to  the  plaintiff,  "  You  are  a  bad  man,  and  I  am 
thoroughly  convinced  that  you  are  guilty  (meaning  guilty  of  the 
the  death  of  the  said  Dolly,)  and  rather  than  that  you  should  want 
a  hangman,  I  will  hang  you." 

After  a  general  verdict  with  damages,  the  defendant  brought  a 
writ  of  error.  Judgment  however,  was  affirmed,  though  the  count 
alluded  to  contained  no  express  allegation,  by  way  of  innuendo  or 
otherwise,  that  the  defendant  intended  to  charge  the  plaintiff  with 
the  crime  of  murder. 

And  though  in  the  above  case  special  damage  was  laid,  it  ap- 
pears that  the  court  held  the  words  to  be  in  themselves  actionable  ; 
and  Lord  Mansfield  observed,  "  These  Avords  plainly 
show  what  *species  of  death  the  defendant  meant,  and  [  *430  ] 
therefore  manifestly  in  themselves  import  a  charge  of 
murder."  On  the  contrary,  if  the  plaintiff  undertakes  to  explain 
the  import  of  the  words,  by  specifying  the  particular  imputation 

(s)  1  Cowp.  275. 
Vol.  I.  58 


430  CIVIL  REMEDY— DECLARATION. 

intended  by  the  defendant,  such  explanation  will  not  vitiate  the 
declaration,  provided  such  an  intention  can  be  collected  from  the 
circumstances.  Thus,  in  the  case  last  alluded  to,  where  a  collo- 
quium was  laid  concerning  the  death  of  Daniel  Dolly,  the  plaintiff, 
in  his  fifth  count,  laid  the  words,  "  You  are  guilty,"  (innuendo  of 
the  murder  of  D.  D.)  and  the  count  was  held  gocd  after  verdict, 
though  the  colloquium  was  of  the  death  only,  and  the  innuendo  of 
the  murder  (f). 

An  innuendo  in  one  count  may  be  supported  by  a  colloquium  in 
a  previous  one.  In  Tindall  v.  Moore  (m),  the  words  laid  in  the 
first  count  were,  "That  rogue  Joe  Tindall  (meaning  the  plaintiff) 
set  the  house  on  fire,"  meaning  the  summer-house  that  was  burnt 
in  the  occupation  of  one  Mr.  Cotten.  In  the  fifth  count  the  words 
were,  "Joe  Tindall  (meaning  the  plaintiff)  set  the  house  on  fire," 
(meaning  the  same  house).  It  was  moved,  in  arrest  of  judgment, 
that  the  words  in  the  last  count  were  not  actionable, 
[  *431  ]  for  *that  every  count  in  a  declaration  is  a  substantive 
count,  and  that  the  innuendo  (meaning  the  same  house) 
could  not  relate  to  the  summer-house  mentioned  in  the  first  set  of 
words.  But  h^  the  court,  although  the  last  set  of  words  be  not  of 
themselves  actionable,  yet  they  shall  have  relation  to  the  former 
set. 

From  these  decisions  it  appears,  that  the  colloquium  and  innuendo 
are  averments,  whose  office  it  is  to  connect  the  defendant's  publi- 
cation with  the  prefatory  matter. 

That  the  first  is  a  general  averment,  connecting  the  whole  of  the 
publication  with  the  previous  statement ;  the  latter  a  subordinate 
averment  connecting  particular  parts  of  the  publication  with  what  has 
gone  before,  in  order  to  elucidate  the  defendant's  meaning  more  fully. 

That  the  want  of  colloquium  cannot  be  supplied  by  an  innuendo. 

That  the  office  of  the  innuendo  is  confined  to  a  simple  explana- 
tion of  the  defendant's  meaning  by  reference  to  previous  matter. 
That  it  cannot,  in  any  case,  supply  the  want  of  prefatory  averments 
and  of  a  colloquium,  in  order  either  to  explain  or  extend  the  mean- 

{t)  See  also  Woolnolh  v.  Meadows,  5  East.  463,  and  Dame  Morrison  v. 
Cade,  Cro.  J.  162.  (m)  2  Wils.  114. 


AVERMENT  OF  MALICE.  431 

in*'  of  the  words  or  libel  set  out,  where  such  an  explanation  or  ex- 
tension  with  reference  to  extrinsic  matter,  is  necessary. 

It  wQuld  not  be  easy,  or  perhaps  possible,  to  point  out  a  more 
clear  and  convenient  process  *for  tecbnically  stating  a 
case  upon  the  record,  than  this,  which  has  Avith  great  [  *432  ] 
wisdom  been  adopted  by  the  law  from  very  early  times ; 
it  combines  simplicity  with  precision,  separating  the  law  from  the 
facts,  and  exhibiting  a  statement  of  the  cause  of  action  on  the  face 
of  the  record,  plain  and  distinct  in  all  its  parts. 

It  is  true  that,  in  some  instances,  justice  may  be  defeated  from 
want  of  attention  to  the  maxims  which  regulate  this  kind  of  state- 
ment; but  it  is  equally  true,  that  this  cannot  happen  without  faulty 
inattention  to  a  few  plain  and  rational  rules,  and  that  the  failure 
might  have  been  prevented  by  the  exertion  of  a  moderate  share  of 
prudence,  aided  by  a  very  small  stock  of  legal  knowledge  ;  and  that, 
on  the  other  hand,  the  general  advantages,  in  point  of  perspicmty 
and  legal  precision  which  result  from  an  adherence  to  these  rules, 
are  too  great  to  be  placed  in  competition  with  the  rare  and  partial 
inconvenience  arising  from  ignorance  or  inattention. 

•averment  of  malice. 

Next,  as  to  the  averment  of  the  defendant's  intention.     [  *433  ] 
Malice  either  in  law  or  fact  is  essential  to  the  action, 
and,  consequently,  a  corresponding  allegation  is  essential  to  a  com- 
plete declaration. 

No  precise  and  prescribed  form  of  words  is  requisite  for  this  pur- 
pose, though  the  term  malicious,  as  applied  to  the  matter  published, 
and  maliciously  to  the  act  of  publishing,  are  the  most  usual  and  ap- 
propriate terms  (a). 

Any  form  of  words  will  suffice  from  which  the  mahcious  mtent 
can  be  inferred  ;  thus  it  has  been  held  to  be  sufficient  to  aver,  that 
the  defendant  spoke  the  words  or  published  the  libel  falsely  or 

(a)  As  to  the  limited  and  technical  sense  in  which  malice  is  used  as  descrip- 
tive of  this  species  of  injury,  vide  supra  3,  209,  292,  and  infra  454. 


433  CIVIL  REMEDY— DECLARATION. 

wrongfully  (i),  or  that  the  defendant  macliinans  pejorare  dixit  (c)» 

And  Rolle,  C.  J.  (d)  was  of  opinion,  that  in  a   declaration  it  is 

not  necessary  to  use  either  the  words  falsely  or  onallciomli/,  though 

it  is  otherwise  in  case  of  an  indictment  or  information.     But  it  is 

suggested   by  Mr.  Serjeant   Williams,  in  his  *note3  on 

[  *434.  ]     Saunders  (c),  that  this  must  he  taken  to  mean  that  the 

omission  would  not  be  fatal  after  verdict. 

But  such  words,  it  seems,  are  essential  in  indiccments  and  inform- 
ations (/). 

It  has  been  the  fashion  with  pleaders,  both  ancient  and  modern, 
to  deal  so  profusely  in  the  evil  motives  and  intentions  atributable  to 
the  defendant,  that  few  cases  are  to  be  met  with  where  any  objec- 
tion has  been  taken,  for  want  of  an  averment  of  this  nature. 

It  does  not  appear  to  be  necessary  (/)  for  the  plaintiff  to  make 
any  averment  by  way  of  exculpation,  since  it  is  incumbent  on  the 
defendant,  in  case  he  mean  to  rely  on  the  justice  of  the  charge  in 
his  defence,  to  plead  the  justification  specially,  and  he  cannot  give 
it  in  evidence  under  the  general  issue. 

And  perhaps  the  averment  of  innocence,  on  the  part  of  the  plain- 
tiff, of  the  charge  cast  upon  him,  or  of  the  falsity  of  the  defendant's 
])ublication,  would  be  considered  as  unnecessary,  on  account  of  the 
general  presumption  which  the  law  entertains  of  a  man's  innocence 
till  the  contrary  be  made  to  appear.  Formerly,  however,  it  was 
held  to  be  incumbent  upon  the  plaintiff  not  only  to 
[  *435  ]  *aver  the  falsity  of  the  charge  in  general  terms,  but  also 
to  negative  particular  facts  contained  in  the  publication 
complained  of;  for  instance,  where  the  slander  was  published  as 
heard  from  another  (^),  it  was  held  to  be  necessary  to  aver  that  the 
defendant  had  not  heard  it. 

But  in  Hooker  v.  Tacker  (Jl),  it  was  held  by  Holt,  C.  J.  that  in 

(5)  Moor  459.     Ow.  51  Noy.  35. 

(c)  Danv.  166.     Com.  Dig.  tit.     Defamation,  G.  5. 

(rf)  Sty.  392. 

(e)  2  Will.  Saund.  242. 

(/)  Sty.  392.     Per  Roll.  C.  J.     1  Vin.  Ab.  533,  pi.  3. 

(/  )  2  Wils.  147.  {g)  Morrison's  case,  Sheppard  Ac.  267. 

(A)  Holt.  R.  39. 


AVERMENT  OF  MALICE.  435 

a  declaration  for  these  words  of  a  trader,  "  He  is  a  pitiful  fellow, 
and  not  able  to  pay  his  debts,"  there  needed  no  averment  that  he 
was  no  pitiful  fello\y,  and  that  he  was  able  to  pay  his  debts. 

So,  in  Bendish  v.  Lindsey  (i),  where  the  action  was  brought  for 
charging  the  plaintiff  with  bribery  at  an  election,  the  defendant, 
holding  up  some  guineas  in  his  hand,  said  of  the  plaintiff,  who  was 
a  candidate,  "  These  guineas  are  Mr.  Bendish's  money,  and  were 
given  me  to  vote  for  him  ;  he  has  bought  my  vote,  and  he  shall  have 
it."  It  was  objected  in  arrest  of  judgment,  after  verdict  for  the 
plaintiff,  that  it  was  not  averred  throughout  the  whole  pleading,  that 
the  plaintiff  did  not  give  the  money.  But  Holt,  C.  J.  said,  it  need 
not  be  averred  that  the  plaintiff  did  not  give  the  money,  for  it  is  said, 
hcec  falsa  ficta  malitiosa  verba,  which  is  well  enough. 

*The  falsity  of  the  charge  may  be  implied  from  the     [  *436  ] 
averment  that  it  was  made  ex  malitia,  since  the  term,  in 
its  legal  sense,  imports  a  publication  without  legal  excuse  (^). 

Where  a  party  repeats  the  slander  of  another,  knowing  it  to  be 
false,  and  that  the  author  has  retracted  his  assertion  or  opinion,  it 
seems  that  an  action  is  maintainable  against  the  reporter,  though  at 
the  time  of  pubhcation,  he  announced  the  name  of  the  person  from 
whom  he  heard  it  ;  but  in  such  case,  it  would  be  proper  to  aver  the 
defendant's  knowledge  in  the  declaration  ;  for,  if  the  fact  were  not 
to  be  averred  in  the  declaration,  and  the  defendant  pleaded  that  he 
gave  the  plaintiff  a  cause  of  action  by  naming  his  author,  the  plain- 
tiff might  be  considered  as  precluded  from  replying  that  the  defend- 
ant maliciously  published  the  slander  against  his  own  knowledge 
and  conviction  ;  for  if  he  could  reply  it,  issue  must  necessarily  be 
joined  upon  the  fact  of  knowledge,  which,  as  has  been  hold,  is  not 
traversable. 

Thus,  in  the  case  of  Sir  Cr.  Gerrard  v.  DicJcenson  (I),  the  action 
was   brought   for  publishing  a  lease,  knowing  it  to  be 
counterfeit,  and   thereby  *hindering  the    plaintiff  from      [  *437  ] 
letting  his  land ;  the  defendant  pleaded,  that   she  found 

(i)   11  Mod.  194. 

(k)  Johnsons.  Sutton,  1  T.  R.  493.   Cro.  Car.  271.  Supra  3,  209,292.  Infra 
454.  (0  4  Rep.  18.  ' 


437  CIVIL  REMEDY— DECLARATION. 

the  lease,  and  traversed  her  knowledge  of  the  forgery  ;  and  the  plea 
was  held  to  be  insufficient,  because  the  knowledge  of  the  forgery  is 
not  traversable,  any  more  than  the  scienter  in  an  action  on  the  case, 
where  the  defendant's  dog  has  bit  the  plaintiff's  cattle,  and  where 
the  plaintiff  avers  that  the  defendant  kneiv  that  the  dog  was  accus- 
tomed to  bite  sheep.     The  objection  to  traversing  the  scienter  which 
has  been  assigned,  is,  that  it  is  no  direct  allegation,  nor  ever  alleged 
in  any  'place,  and  therefore  cannot  be  tried  (m).     This  objection,  on 
the  score  of  locality,  ceased  indeed  when  it  was  no  longer  required 
that  the  venire  should  be  awarded  from  the  vicinage ;  and  there 
seems  to  be  no  very  satisfactory  reason  why  a  party  in  pleading 
should  not  confine  the  evidence  by  traversing  any  distinct  circum- 
stance which  is  essential  to  his  adversary's  case,  and  which  must  be 
proved  upon   the   trial.     Since,  however,  the   technical  objection  to 
traversing  the  scienter  has  not  been  judicially  defeated,  it  would  not 
be  proper  to  omit  the  averment  of  knowledge  in  the  declaration,  in 
a  case  where  it  is  material ;  as,  where  a  party  has  repeated  [1] 
slander,  knowing  the  author  to  have  been  convinced  of  his  error,  or 
sets  up  a  lease  which  he  knows  to  be  a  forgery,  for  the  purpose  of 

injuring  the  plaintiff. 
[  *438  ]         *Where  particular  circumstances  have  been  introduced, 
to  shew  the  defendant's  conduct  to  have  been  malicious, 
it  will  be  necessary  to  prove  them  upon  the  defendant's  pleading  the 
general  issue  (ii). 

It  is  sometimes  advisable,  and  perhaps  necessary,  to  allege  the 
malicious  intention  in  particular  with  which  the  defendant  uttered 
the  words  or  published  the  libel.  Thus  it  may  be  necessary,  in  an 
indictment  or  information,  to  allege  that  he  did  so  with  intent  to 
provoke  another  to  commit  a  breach  of  the  peace  (o),  or  with  in- 
tent to  defame  a  particular  class  of  persons,  or  to  bring  the  admin- 
istration of  justice  into  contempt.     Where  a  libel  has  been  alleged 

(m)  4  Rep.  18.  {n)  2  East.  437. 

(o)  See  R  v.  Wegener,  Starkie's  C.  Where  Abbott,  C.  J,  held,  that  a 
libel  written  to  an  attorney  and  containing  reflections  on  his  professional  char- 
acter, was  not  indictable  without  an  allegation,  that  it  was  written  with  intent 
to  provoke  him  to  commit  a  breach  of  the  peace. 

[1]  See  note  [1].  p-  340,  supia. 


AVERMENT  OF  MALICE.  438 

to  have  been  published  with  several  intentions,  which  are  in  their 
own  nature  distinct  and  divisible,  it  will  be  sufficient  to  prove  that  the 
fact  was  done  with  any  one  of  such  different  intentions,  provided  the 
publishing  the  particular  matter  wiih  that  intention  be  criminal. 

Thus,  where  a  libel  was  alleged  to  have  been  published  with  in- 
tent to  bring  the  administration  of  justice  into  contempt, 
and  also  to  defame  particular  magistrates,  it  was  'held,     [  *439  ] 
that  the  defendant  was  liable  to  be  convicted,  if  a  publi- 
cation, with  either  of  those  intentions,  was  proved  (p). 

Next,  as  to  the  statement  of  the  loss  or  damage  to  the  plaintiff 
resulting  from  the  wrongful  act  of  the  defendant. 

Where  the  words  are  intrinsically  actionable,  the  loss  to  the 
plaintiff  is,  as  has  been  seen,  a  mere  inference  or  presumption  of  law  ; 
and  it  does  not  seem  to  be  necessary  for  the  plaintiff  to  aver  that 
the  words  complained  of  amount  to  the  charging  of  a  precise  crime  ; 
for  their  actionable  quality  is  a  question  of  law,  and  not  of  fact,  and 
will  be  collected  by  the  court  from  the  circumstances,  if  they  war- 
rant it  {q').  But  in  such  case,  it  may  frequently  be  advisable  to 
aver  special  damage  to  have  been  sustained  in  consequence  of  the 
words ;  such  an  averment  will  not  prejudice,  since  it  will  not  be  nec- 
essary to  prove  it  on  the  trial.  If  no  such  proof  be  then  given,  and 
the  jury  give  a  general  verdict,  the  defendant,  if  it  should  be  neces- 
sary afterwards  in  order  to  enable  him  to  move  in  arrest  of  judg- 
ment, may  have  the  verdict  amended  by  confining  (r) 
it  *to  the  actionable  words  according  to  the  judge's  [  *440  ] 
notes. 

Formerly  it  was  held  (5)  that,  where  the  words  were  not  actiona- 
ble, but  the  special  damage  was  the  gist  of  the  proceeding,  such 
special  damage  might  be  given  in  evidence,  although  the  particular 
instances  of  the  special  damage  were  not  stated  in  the  declaration ; 

(p)  R.  V.  Evans,  Cor.  Bayley,  J.  Lane.  sp.  assizes,  1821.  See  also  R.  v. 
Dawson,  Cor.  Holroyd,  J.  York  summer  assizes,  1821.  Slaikie  on  Evidence, 
iv.  15.  86. 

(q)  See  Peaks  v.  Oldham,  Cowp.  Rep.  275. 

(r)  This  is  done  at  chambers,  as  of  course,  without  a  motion  in  court.  The 
application  must  be  made  to  the  jndge  who  tried  the  cause  (if  at  the  assizes, 
though  the  record  is  one  of  another  court. 

(s)  Browning  v.  Newman,  1  Str.  666. 


440  CIVIL  REMEDY— DECLARATION. 

but  that,  -when  the  words  themselves  were  actionable,  particular  in- 
stances of  such  damage  could  not  be  given  in  evidence,  unless  spe- 
cified on  the  record. 

But  the  modern  practice  (f)  does  not  warrant  this  distinction, 
and  at  the  present  day  it  seems  that  in  both  cases  the  particular 
damage  must  be  specified  [1]. 

The  general  rule  of  pleading,  as  to  special  damage,  is,  that  it 
must  be  averred  -with  that  degree  of  certainty  and  particularity 
which  the  case  admits  of,  in  order  that  the  defendant  may  be  ap- 
prized what  it  is  he  comes  to  answer,  though  in  some  cases  where 
particularity  would  be  productive  of  inconvenience,  and  the  circum- 
stances are  not  immediately  within  the  knowledge  of  the  party,  a 
more  general  statement  has  been  deemed  to  be  sufficient. 
[  *441  ]  *Thus  the  averring  generally,  that  by  means  of  the 
publication,  several  customers  (not  naming  them)  left  the 
plaintiflf's  house,  is  not  sufficiently  precise  («). 

And  so,  where  the  alleged  damage  consists  in  loss  of  marriage  (a;), 
the  plaintiff  must  point  out  the  individual  with  whom  the  marriage 
would  otherwise  have  been  contracted. 

And  for  the  same  reason,  where  the  plaintiff  states  a  marriage 
with  J.  N.  to  have  been  hindered,  he  cannot  afterwards  give  in 
evidence  loss  of  marriage  with  any  other  person  (^r). 

But  it  has  been  said,  that  greater  certainty  is  requisite  where  the 
special  damage  is  the  gist  of  the  action,  than  where  it  is  merely 
laid  by  way  of  aggravation  (2) . 

Where  the  special  damage  consists  in  the  (a)  plaintiff's  having 
been  prevented  from  disposing  of,  or  selling  his  estate,  it  is  necessary 
to  shew  how  he  was  prevented,  as  that  he  had  taken  some  steps  for 
the  purpose  of  selling,  and  that  the  bidding  was  stopt  by  the  defend- 
er B.  N.  P.  7.     1  Will.  Saund.  243.  n.  5.  Sir.  666. 

(M)  B.  N.  P.  7.    1  Roll.  Abr.  58.    8  T.  R.  130. 

{X)  1  Sid.  396.    1  Vent.  4.     Cro.  J.  499.    12  Mod.  597. 

(y)  Lord  Ray.  1007. 

(2-)  Per  Cur.  in  Welherell  v.  Clerkson,  12  Mod.  597.  2  Lut.  1295. 

(a)  Smead  v.  Badley,  Cro.  J.  397.     Sir  W.  Jones,  196. 

[1]  Same  doctrine  held  in  Herrick  v.  Laphana,  10  Johns.  281  ;  Hersh  v.  Ring- 
wait,  3  Yeates  508. 


AVERMENT  OF  DAMAGE.  441 

dant's  act ;  but  it  is  unnecessary  to  specify  the  names  of  any  of  the 
bidders. 

•Where  the  plaintiff  (5),  who  had  been  a  preacher  in 
a  chapel  to  a  dissenting  congregation,  averred  generally  [  *442  ] 
in  the  declaration,  that  by  reason  of  the  words  the  per- 
sons who  frequented  the  said  chapel  had  refused  to  permit  him  to 
preach  there,  and  had  discontinued  giving  him  the  gains  and  profits 
which  they  had  usually  given,  and  otherwise  would  have  given ;  the 
court  held,  on  motion  in  arrest  of  judgment,  that  where  a  plaintiff 
brings  an  action  for  slander,  by  which  he  lost  his  customers  in  trade, 
he  ought,  in  his  declaration,  to  state  the  names  of  those  customers, 
in  order  that  the  defendant  may  be  enabled  to  meet  the  charge,  if  it 
be  false  ;  but  that  in  the  principal  case,  the  plaintiff  could  not  have 
stated  the  names  of  all  his  congregation,  and  that  it  was  sufficient 
to  say  that  he  had  been  removed  from  his  office,  and  had  lost  the 
emoluments  of  it  (c). 

Where  actionable  words  are  spoken,  within  the  scope  of  a  private 
jurisdiction,  the  declaration  may  allege  a  consequential  loss  of  cus- 
tomers at  a  place  beyond  the  limits  of  such  jurisdiction.  For  the 
allegation  is  only  in  respect  of  damages  to  increase  them,  and  may 
be  inquired  of  in  any  place  whatsoever  (c?). 

*Where  the  words  are  in  themselves  actionable,  and 
the  particular  character  of  the  plaintiff  is  stated  in  ag-  [  '443  ] 
gravation,  it  is  not  necessary  to  state  the  circumstances 
of  that  situation  with  so  great  certainty  as  where  it  is  essential  to 
the  action.  Thus,  where  the  words  are  spoken  of  a  candidate  to 
serve  in  parliament,  it  is  sufficient  to  state  the  fact  generally,  and  it 
is  unnecessary  to  set  forth  the  writ  to  the  sheriff  (e). 

In  general  (/),  the  place  where  the  words  are  spoken  is  imma- 
terial ;  yet,  it  has  been  said  that  if  the  plaintiff  state  the  place  by 
way  of  aggravation,  and  not  merely  as  venue,  he  will  be  bound  to 
prove  the  speaking  to  have  been  in  the  place  named. 

(b)  Hartley  v.  Herring,  8  T.  R.  130.  (c)  4  Burr.  3424- 

(d)  Ireland  v.  Blockwell  in  error,  Cro.  C.  570. 

(e)  Harwood  v.  Sir  J.  Astley,  1  N.  R.  47. 

(/)  B.  N.  P,  5.  tamen  qu.  &  vid.  Starkie  on  Evidence,  tit.  Variance.     Plaet 

Vol.  I.  59 


443  CIVIL  REMEDY— DECLARATION. 

With  respect  to  joining  different  injuries  in  the  same  proceeding, 
■words  spoken  at  different  times  may  be  included  in  the  same  count. 

In  such  case,  however,  if  it  should  appear  on  the  face  of  the 
count  that  the  ^Yords  "were  spoken  at  different  times,  and  that  some 
of  them  were  not  actionable,  judgment  would  be  arrested,  if  entire 
damages  were  given  for  the  whole  count. 

And  a  count  for  oral  slander  (g)   may  be  joined  with  a  count  for 

a  libel  in  the  same  declaration.     *And  the  imposing  cri- 

[  *444  ]     men  ftlionce  and  causing  (7i)  a  plaintiff  to  be  brought 

before  a  magistrate  may  be  joined  with  a  complaint  for  a 

malicious  accusation  before  the  magistrate. 

If  the  plaintiff  recover,  he  cannot,  it  seems,  afterwards  recover 
in  respect  of  any  special  damage  which  accrued  subsequently  from 
the  speaking  of  the  same  words  (%'). 

Where  the  words  are  intrinsically  actionable,  special  damage, 
though  averred,  need  not  be  proved  (Jc). 

In  the  proceeding  by  writ  of  scandalum  magnatum,  the  plaintiff 
declares  famjijro  domino  rege  quam  pro  set^so  (/),  though  he  is 
entitled  to  the  whole  of  the  damages  recovered. 

It  has  been  held  (m),  that  the  statute  2  R.  2.  st.  1.  c.  5,  is  a 
general  law,  and  that  the  plaintiff  need  not  recite  it  in  his  declara- 
tion ;  but  that  if  he  undertake  to  recite  it  and  vary  from  it  in  any 
material  point,  the  declaration  will  be  bad. 

Where  a  charge  has  been  falsely  and  maliciously  made 
[  *445  ]     in  a  judicial  form,  the  plaintiff,  as  has  been  *seen,  can- 
not declare  simply  on  the  slander  (n),  but  must  found 
his  action  on  the  particular  circumstances  of  the  case.     The  declar- 
ation must  shew, 

(g)  King.  V.  Waring  and  uxor,  5  Esp.  C.  13. 

{h)  Cro.  Car,  271.  Note  that  the  court  held  that  the  charge  before  the  mag- 
istrate was  not  in  the  nature  of  a  conspiracy,  but  was  an  aggravation  of  the 
false  and  malicious  accusation. 

(z)  B.  N.  P.  7.  tamen  qu.  &  vid.     2  Mod.  151,  contra. 

{k)  Cook  V.  Field,  3  Esp.  C.  133.  {I)  6  Bac.  Ab.  100.     1  P.  Will.  690. 

(m)  4  Co.  12  b.     Cro.  Car.  136.     Com.  Dig.  Defam.  B.  3. 

(n)  Vide  supra  276,  and  it  seems  that  in  general  where  the  action  is  not 
maintainable,  unless  the  act  be  done  maliciously  and  without  probable  cause^ 


MALICIOUS  PROSECUTION.  445 

1st.  A  prosecution  instituted  and  determined. 

2dly.  That  the  defendant  acted  maliciously  and  without  probable 
cause  in  the  prosecution  of  a  false  charge. 

3dly.  The  damage  resulting  to  the  plaintiff. 

1st.  A  prosecution  instituted  by  the  defendant  and  since  deter- 
mined. 

The  fact  of  the  prosecution  must  of  course  be  alleged  according 
to  the  particular  circumstances. 

Where  the  prosecution  was  by  preferring  a  bill  of  indictment, 
•which  was  found  to  be  a  true  bill,  the  declaration  may  state  that  the 
defendant  indicted,  and  caused  and  procured  to  be  indicted,  the  said 
plaintiff,  and  the  material  parts  should  be  set  out.  But  where  the 
jury  have  thrown  out  the  bill,  it  should  be  described  as  a  bill  and  not 
as  an  indictment  (o). 

Formerly  it  was  held  to  be  necessary  to  shew,  that  the  prosecu- 
tion was  instituted  before  a  court  of  competent  jurisdic- 
tion, to  try  the  supposed  offender  *for  the  offence  imput-  [  *446  ] 
ed  (p).  But  it  seems  to  be  now  settled,  that  an  action 
on  the  case  may  be  supported  for  an  arrest,  though  the  court  from 
which  the  process  issued  had  no  jurisdiction  (q,')  and  that  an  action 
may  be  supported  for  a  malicious  prosecution  of  a  defective  indict. 
ment,  and,  therefore,  at  this  day,  it  does  not  appear  to  be  necessary 
to  make  any  averment  (r)  as  to  the  competency  of  the  court. 

And  it  has  been  held,  that  the  style  of  the  court  need  not  be  ex- 
actly copied  (s). 

the  declaration  ought  to  aver  the  special  circumstances  and  allege  the  malice 
and  want  of  probable  cause. 

(0)  Com.  Dig.  Ind.  B.     5  Taunt.  187.     1  Salk.  376. 

(p)  Com.  Dig.  Action  on  the  case  for  a  conspiracy.  C.  4.  Rol.  Ab.  Actioa 
surcase50.  iq)  2  Wi!s  302. 

(r)  4  T.  R.  247.  2  Str  691.  1  Salk.  15,  Such  an  action  lies  in  respect 
of  a  malicious  charge  in  the  Ecclesiastical  Court.  Gibs.  21G.  Bunb.  247. 
Burn's  Kcc.  Law.  tit.  Churchwarden. 

(s)  Where  the  plaintiff  alleged  an  indictment  at  the  (]mrlcr  sessions,  and  by 
the  record  it  was  at  the  general  sessions,  the  word  quarter  was  rejected  as  surplus- 
age. Busby  V.  Watson,  2  Bl.  1050.  But  it  was  held,  that  it  would  have  been 
otherwise,  if  the  offence  had  been  [cognizable  only  at  the  quarter  sessions,  and 
not  *t  the  general  sessions.     See  also  Constantine  v.  Barnes,  Cro.  J.  3;J, 


446  CIVIL  REMEDY— DECLARATION. 

If  the  declaration  set  forth  an  indictment  containing  several  char-= 
ges,  it  is  sufficient  to  prove  that  some  of  them  were  maliciously  pre- 
ferred, though  there  was  ground  for  the  rest  (t). 
[  *447  ]  It  is  not  necessary,  as  in  a  declaration  for  slander  *or 
libel,  to  state  the  very  words  or  expressions  used  in  mak- 
ing the  charge ;  for  the  malicious  prosecution,  and  not  the  words 
themselves,  is  the  gist  of  the  action.  But  it  is  necessary  to  state 
the  substance  of  the  charge.  Where  the  prosecution  is  by  indict- 
ment, the  declaration  should  state  the  material  parts  of  the  indict- 
ment. Where  the  prosecution  is  by  application  to  a  magistrate,  the 
substance  of  the  charge  should  be  stated  according  to  the  magis- 
trate's warrant,  or  from  the  written  examination  of  the  defendant  be- 
fore the  magistrate,  where  the  contents  of  those  documents  can 
be  ascertained.  It  is  sufficient  to  describe  the  substance  of  the 
charge  and  advisable  to  state  merely  the  substance,  in  order  to 
avoid  the  danger  of  variance. 

Where  the  declaration,  professing  to  set  out  the  substance  of  the 
charge,  in  specifying  the  goods  and  their  value,  used  the  word  val- 
oris  for  valentice,  it  was  held  that  the  variance  was  immaterial  (u). 
But  it  was  said,  that  it  would  have  been  otherwise,  had  the  indict- 
ment been  set  out  in  Jiceo  verba  (a;).  So  where  the  declaration  al- 
leged that  the  defendant  charged  the  plaintiff  before  the  magistrate 
with  assaulting  and  heating  him,  and  the  charge  was,  in  fact,  for  as- 
saulting and  striking,  it  was  held  that  the  description  was 
[  "448  ]  *in  substance  correct  (t/).  So,  where  the  declaration  for 
a  malicious  arrest  stated  the  warrant  to  be  to  arrest  the 
plaintiff  for  an  assault,  with  intent  to  rob  A.  (the  informant),  and  the 
words  of  the  warrant  were  to  rob,  as  he  verily  believes  (3).  Where 
the  declaration  alleged  that  the  defendant  charged  the  plaintiff  with 
felony  before  a  magistrate,  it  was  held  that  the  averment  was  support- 
ed by  proof  of  a  charge  made,  stating  the  suspicion  of  the  defend- 
ant (a) . 

(0  Reed  v.  Taylor,  4  Taunt.  616. 
(u)  Johnson  and  uxor  v.  Browning,  6  ]\Iod.  216. 
(r)  lb.  (y)  Byne  v.  Moore,  1  Taunt.  589. 

(z)  But  note  that  a  juror  was  afterwards  withdrawn. 

(a)  Davis  v.  Noak,  1  Starkie's  C.  377.     Cor.  Lord  Ellenborough,  C.  J.  and 
afterwards  by  the  Court  of  King's  Bench,  Bayley,  J.  dissentiente- 


MALICIOUS  PROSECUTION.  448 

A  general  allegation  that  the  defendant,  made  a  charge  of  felony, 
&c.  (crimen  felonise  imposuit)  is  sufficient,  or  at  least  it  is  good  after 
verdict  (/>).  For  such  an  allegation  is  not  supported  by  proof  of 
mere  words  without  going  before  a  magistrate  and  preferring  crimen 
that  is  a  charge  of  felony,  without  reference  to  the  precise  mode. 

*In  the  case  of  Blizard  v.  Kdli/  (e),  it  was  held,  that  [  "449  ] 
a  count  alleging  that  the  defendant  had  wrongfully,  and 
without  reasonable  or  probable  cause,  imposed  the  crime  of  felony 
on  the  plaintiff,  was  good  after  verdict.  In  the  case  of  Coleman 
V.  Goodwin,  cited  from  the  note  book  of  Gibbs,  L.  C.  J.  the  ninth 
count  of  the  declaration,  on  which  the  plaintiff  had  obtained  a  gen- 
aral  verdict,  alleged  that  the  defendant  had  imposed  the  crime  of 
having  been  guilty  of  unnatural  practices  on  the  plaintiff,  and  the 
court  refused  to  arrest  the  judgment,  saying  that  it  must  be  under- 
stood to  mean  an  accusation  before  a  magistrate,  but  that  in  such 
an  accusation  it  was  not  necessary  to  make  use  of  words  of  legal 
charge,  that  is  made  out  afterwards  by  evidence. 

But  if  the  defendant,  before  the  magistrate,  stated  facts,  which 
shewed  the  plaintiff  to  have  been  guilty  merely  of  a  tortious  con- 
version of  the  defendant's  goods,  on  which,  however,  the  magistrate 
erroneously  issued  a  warrant  for  felony,  the  circumstances  will  not 
warrant  an  allegation  that  the  defendant  charged  the  plaintiff  with 

a  felony  (tZ). 

2dly.    The  determination  of  the  prosecution  *must  be     [  *450  ] 

shown  by  proper  averments  (e).      Where  the  plaintiff 

has  been  actually  acquitted  by  the  verdict  of  a  jury,  it  ought  to 

(b)  See'Davis  v.  Noak,  1  Starkie's  C.  377.  And  it  was  held,  in  that  case, 
by  three  of  the  judges  (Bayley,  J.  dissentiente),  that  such  a  charge  is  supported 
by  evidence,  that  the  defendant  slated  to  the  magistrate  that  he  had  been  robbed 
of  certain  specified  articles,  and  that  he  suspected  and  believed,  and  had  good 
reason  to  suspect  and  believe,  the  plaintiff  had  stolen  them. 

(c)  2'B.  &  C.  283. 

(d)  Leigh  V.  Webb,  3  Esp.  C.  167.  1  Starkie's  C.  67. ;  and  see  Cohen  v. 
Morgan,  6  D.  &  R.  8. 

(e)  Willes  250,  n.  a.  1  Doug.  215.  10  Mod.  209.  Com.  Rep.  190.  1 
Esp.  C.  79.  Bac.  Ab.  Action,  on  Case,  H-  Com  Dig.  Action  on  Case,  Con- 
spiracy, C.  5.  2  T.  R.  225—232.  1  Will.  Saund.  228,  9.  Alverton  v.  Treg- 
ono,  Yelv.  116.     Lewis  v.  Yarrell,  Str.  114.     Parkes  v.  Langley,  Gil.  R.  103. 


450  CIVIL  REMEDY— DECLARATION. 

be  alleged  that  the  plalntifiF  was,  in  due  form  of  law,  acquitted  (/) 
according  to  the  fact.  And  it  would,  it  seems,  be  insuflacient  to 
allege  merely  that  the  plaintiff  was  released  and  discharged  from 
the  said  imprisonment  (^).  And  care  should  be  taken  to  allege 
the  acquittal  according  to  the  fact.  If  the  declaration  allege  an 
acquittal  in  Bank,  it  will  not  be  satisfied  by  proof  of  an  acquittal 

at  Nisi  Prius  (/t).  But  if  the  day,  on  which  the  acquit- 
[  *451  ]     tal  is  alleged  *to  have  taken  place,  be  not  averred  by 

way  of  description  of  the  record,  a  variance  from  the 
day  of  acquittal,  as  alleged,  will  not  be  material.  Thus  where  the 
declaration  averred  that  afterwards,  to  wit,  on  the  morrow  of  the 
Holy  Trinity,  &c.  the  plaintiff  was  in  due  manner  and  by  due  course 
of  law  acquitted  ;  and,  by  the  record  of  Nisi  Prius,  it  appeared 
that  the  acquittal  took  place  on  Tuesday  next  after  the  end  of  East- 
er Term,  the  proof  was  held  to  be  sufficient  (i).  It  would  be  oth- 
erwise, if  the  day  were  so  alleged  as  to  be  descriptive  of  the 
word  {k').  But  if  the  date  be  not  alleged  as  descriptive  of  the 
word,  a  variance  would  not  be  fatal,  though  the  acquittal  were  un- 
necessarily alleged  with  a  prout  patet  per  recordum  (I'). 

An  allegation  that  the  plaintiff  has  been  discharged  by  the  grand 

(/)  The  word  acquitted  must  be  taken  in  its  legal  sense,  viz.  by  a  jury,  2  T. 
R.  231.  Where  the  declaration  alleged  that  the  plaintiff,  by  a  jury  of  the  county 

of ,was  duly  and  in  a  lawful  manner  acquitted,  and  by  the  record  it  appeared 

that  the  jury  found  the  plaintiff  not  guilty;  and  upon  that  verdict  the  judgment 
of  the  court  was  that  the  plaintiff  should  go  thereof  acquitted  ;  it  was  holden 
to  be  sufficient  for  reddendo  singula  singulis,  the  plaintiff  was  duly  acquiUed  by 
a  jury,  that  is,  found  not  guilty  oftlie  facts,  and  in  a  lawful  manner  acquitted  by 
the  judgment  of  the  court.     Hunter  v.  French,  Willes  517. 

(g)  Morgan  v.  Hughes,  2T.  R.  225.     {h)  Woodford  v.  Ashley,  11  East.  508. 

(i)  Purcell  v.  Macnamara,  9  East,  157,  over-ruling  the  case  of  Pope  v.  Foster 
4  T.  R  5U0,  and  see  R.  v.  Hacks,  2  Starkie's  C.  521,  and  R.  v.  Payne.  Cor. 
Lord  Kenyon,  West.  Sittings  after  Mich.  29  G.  3.  See  Slarkie  on  Evidence, 
pt.  iv.  p.  910. 

{k)  9  East.  160.    Green  v.  Rennett,  1  T.  R.  656. 

(l)  Stoddart  v.  Palmer,  3  B.  &  C.  2.  Co.  Litt.  303.  Wate  v.  Briggs,  1 
Lord  Ray.  35.  3  Salk.  565.  See  the  case  of  Phillips  v.  Shaw,  4  B.  &  A.  435. 
6  B.  &  A.  984.     Gadd  v.  Bennett,  5  Price  549.     Rastall  v.  Stratton,  1  H.  B.  49. 


MALICIOUS  PROSECUTION.  451 

jury's  throwing  out  the  bill,  sufficiently  shews  that  the  prosecution 
has  been  legally  determined  (wi). 

*Whcre  the  plaintiff  has  been  discharged,  after  ex-  [  •452  ] 
amination  before  a  magistrate,  or  after  such  examination, 
the  prosecutor  has  abandoned  the  charge,  and  where  an  absolute 
acquittal  cannot  be  alleged,  it  should  be  alleged  that  the  plaintiff 
was  discharged  out  of  custody,  fully  acquitted  and  discharged  of  tho 
said  supposed  offence,  and  that  the  complaint  and  prosecution  have 
been  abandoned  by  tho  prosecutor,  and  were  wholly  ended  and  de- 
termined (w). 

It  must  be  alleged  that  the  defendant  acted  falsely  and  maliciously, 
and  without  any  reasonable  or  probable  cause  in  preferring  the 
charge.  But  it  seems  that  the  word  falsely,  without  maliciously, 
would  suffice  (o). 

3rdly.  The  damage  resulting  to  the  plaintiff.  This  may  be  either 
to  his  person  by  imprisonment,  to  his  reputation  by  scandal,  or  to 
his  property  by  expense  (p);  or  it  may  consist  in  the  personal 
labour  and  trouble  imposed  on  the  plaintiff  in  procuring  his  acquittal 
or  discharge,  and  the  pain  and  anxiety  of  mind  naturally  occasioned 
by  the  pendency  of  a  criminal  charge. 

(m)  2  T.  R.  232. 

(n)  See  Chilly  on  Pleading,  vol,  2.  p.  293,  3d  edit.  The  omission  to  shew 
the  delermination  of  the  former  prosecution  will  be  aided  by  verdict.  Com. 
Dig  Aciion  on  the  Case,  Conspiracy  C  5.  Bac.  Ab.  Action  on  Case  H- 

(o)   1  T,  R.  544.     4  Burr.  1974.     1  Wils.  232.  B.  N.  P.  14. 

(p)  See  1  T.  R.  493.  Gilb,  Cas.  L.  &  E.  185,  202.  12  Mod.  208.  Chitty 
on  Pleading,  vol.  2.  290,  3d  edit. 


CHAPTER    XVI. 


Of  the  Defendant's  Plea. 

*The  principal  circumstances  of  "which  the  defendant 
[  *453  ]  may  avail  himself  in  resisting  an  action  for  slander  have 
already  been  adverted  to  (a),  the  technical  mode  of  an- 
swering the  charge  on  the  record  is  next  to  be  noticed. 

Under  this  division  it  is  to  be  considered — 1st.  In  what  cases  the 
defendant  may  give  his  defence  in  evidence  under  the  general  issue, 
and  in  what  instances  he  is  confined  to  the  plea  of  the  general 
issue. 

2dly.  In  what  cases  the  defence  may  be  pleaded  specially,  and 
in  what  cases  it  must  be  so  pleaded. 

3dly.  How  it  should  be  specially  pleaded. 

1st.  The  defence  may  consist  either  in  a  mere  denial  of  the  fact 
of  publishing  the  injurious  matter  as  alleged,  or  of  the  damage  al- 
leged to  have  resulted  from  it,  when  such  consequential  damage  is 
the  gist  of  the  action,  or  of  matter  of  justification 
[  *454:  ]  *or  excuse,  arising  from  collateral  circumstances,  or  in 
some  matter  which  has  discharged  a  previously  existing 
right  of  action.  The  plea  of  the  general  issue,  '  not  guilty,'  obliges 
the  plaintiff  to  prove  all  the  facts,  as  alleged  in  his  declaration, 
which  are  essential  in  law  to  his  right  to  recover ;  consequently  the 
plea  of  the  general  issue  is  proper  and  suflBcient  in  all  cases  where 
the  defendant  means  to  deny  or  disprove  any   fact  essential  to  the 

(a)  Supra  Ch.  9  to  14  inclusive- 


PLEA— GENERAL  ISSUE.  454 

plaintiff's  case.  As  where  he  means  to  deny  that  he  spoke  the 
words,  or  published  the  libel  set  forth  in  the  declaration,  or  that  the 
terms  of  the  alleged  slander  were  used  in  the  calumnious  and  ac- 
tionable sense  attributed  to  them  by  the  plaintiff,  or  that  the  injuri- 
ous consequence  alleged  by  the  plaintiff  resulted  from  the  act  of 
speaking  or  publishing. complained  of. 

And  he  may  also,  in  all  cases  where  the  occasion  and  circum- 
stances of  the  speaking  or  other  publication  are  such  as  to  call  on 
the  plaintiff  to  prove  express  or  actual  malice,  establish  such  occa- 
sion and  circumstances  by  evidence  under  the  general  issue,  and 
the  proof  will  serve  as  n  defence,  unless  it  appear  that  he  acted 
not  honestly  according  to  the  occasion,  but  out  of  actual  malice  and 
ill-will. 

For  in  such  cases,  that  is  where  the  occasion  and  cir- 
cumstances of  the  speaking  the  words,  or  *pub1ishing  the     [  *4o5  ] 
libel,  throw  it  on  the  plaintiff  to  prove  a  dishonest  and 
malicious  intention  in  fact,  such  proof  becomes  an  essential  part  of 
plaintiff's  case ;  and,  therefore,  the  evidence  offered  to  rebut  it  is 
properly  admissible,  under  the  plea  of  the  general  issue  [1]. 

[1]  The  defendant  may  accordingly,  under  the  general  issue,  shew  that  the 
alleged  slander  consisted  in  a  communication  to  the  appointing  power  of  the 
state,  in  reference  to  the  conduct  of  the  plaintiff  as  public  officer,  or  to  officers, 
judicatories  or  individuals  authorized  by  law  to  redress  grievances.  Thorn  v. 
Blanchard,  5  Johns.  R.  508  ;  Howard  v.  Thompson,  21  Wendell  319  ;  Van- 
derzee  v.  McGregor,  12  Wendell  545  ;  O'Donaghue  v.  jMcGovern,  23  Wendell 
26 ;  1  Tyler's  R.  164  ;  2  Id.  129 ;  2  Serg.  &  Rawle  23  ;  4  Id.  420  ;  3  Pick. 
379;  Woodward  v.  Lander,  6  Carr.  &  Payne  548  ;  Blake  v.  Pifford,  1  Moody 
&  Robinson  198  ;  and  it  seems  he  may  do  so,  even  though  the  application  be 
made  to  parties  who  have  no  direct  means  of  giving  relief.  Fairman  v.  Ives.  5 
Barn.  &  Aid.  647.  Or  in  communications  on  matters  of  business  made  by  or  to 
persons  interested  in  the  subject  matter  of  the  communications,  although  they 
affect  the  character  or  credit  of  the  plaintiff.  Spike  v.  Cleyson,  Cro.  Eliz.  541 ; 
Prosser  t>.  Bromage,  4  B  &  C  247;  Delany  f.  Jones,  4  Esp.  C.  191;  Mc- 
Dougall  r.  Claridge,  1  Camp.  C.  267  ;  Dunman  v.  Bigg,  3  Camp.  C.  260  ;  Browa 
V.  Croome,  2  Starkie's  C.  297  ;  Todd  v.  Hawkins,  8  Carr.  &  Payne  88 ;  Knight 
V.  Gibbs,  3  Neville  &  Manning,  467  ;  Shipley  v.  Todhunler,  7  Carr.  &  Payne 
680  ;  Cockayne  v.  Hodgkinson,  5  Carr.  &  Payne  543 ;  Godson  v.  Flower,  2  B. 
&  B.  7  ;  Bradley  ».  Heath,  12  Pick.  163,  or  in  giving  the  character  of  a  ser- 
VOL.  I.  60 


455  CIVIL  REMEDY— DEFENCE. 

So  again,  if  the  immediate  occasion  and  circumstances  of  th^ 
publication  be  such  as  to  exclude  the  plaintiff's  action  altogether, 
■without  regard  to  the  question  of  motive  or  intention,  the  general  is- 
sue is  a  sufficient  plea  ;  for  then  the  defendant  has  not  acted  wrongs 
fully  or  maliciously  in  a  legal  sense ;  in  other  words,  the  occasion 
rebuts  the  inference  of  legal  malice  (6),  which  is  essential  to  the  ac- 
tion. 
[  *456  ]  *And,  therefore,  the  defendant  may  shew  that  when 
he  did  the  act  complained  of,  he  was  acting  as  a  judge  or 
juror,  or  as  a  party  or  witness  in  a  judicial  proceeding  [1]. 

vant,  Wealherstone  v.  Hawkins,  1  T.  R.  110  ;  Rogers  v.  Clifton,  3  Bos.  &  Pul, 
587  ;  Edmonson  v.  Stevenson,  Bull.  N.  P.  8,  and  Hodgson  v.  Scarlett,  1  Barn. 
&  Aid.  240,  per  Lord  Ellenborough. 

{b)  It  is  again  to  be  observed,  that  legal  malice  is  the  same  in  effect  with  the 
absence  of  legal  excuse,  where  the  act  itself  is  wilful,  and  is  unlawful.  And, 
therefore,  it  would  be  more  proper  to  say,  that  by  law  the  particular  occasion  is 
a  bar  to  the  action,  than  to  say  that  the  particular  occasion  rebuts  the  inference 
of  malice.  Malice,  in  the  legal  sense,  being  but  negatively  essential  to  the  right 
of  action*  it  is  but  superfluous  and  circuitous  to  say,  that  the  absence  of  a  legal 
excuse  is  rebutted  by  the  existence  of  a  legal  excuse,  and  so  the  action  is  barred. 
It  is  probable  that  at  an  early  period,  and  before  the  law  itself  had,  by  the  aid 
of  increased  experience,  declared  and  defined  the  circumstances  which  should 
afford  a  legal  defence,  but  when,  nevertheless,  it  still  was  necessary  to  lay  down 
some  limit,  in  order  that  mutual  communications  might  not  be  too  much  fettered, 
the  existence  or  absence  of  actual  malice  was  constituted  the  legal  limit  to  the 
action.  It  would,  in  process  of  time,  be  discovered  that  such  a  limit  was  incon- 
venient in  itself,  and  not  sufficiently  supported  by  principle  to  constitute  the 
general  boundary  between  legal  and  illegal  communications  ;  that  it  was  better 
that  the  law  should,  in  reference  to  the  occasion,  distinguish  between  privileged 
and  illegal  communications,  and  that,  on  the  one  hand,  some  occasions  ought  to 
constitute  an  absolute  defence,  without  reference  to  motive  ;  that,  on  the  other, 
where  the  law  afforded  no  protection,  the  mere  absence  of  an  actual  and  delib- 
erate intention  to  injure  ought  not  to  be  a  defence  to  an  action  for  wilful  defa- 
mation. Malice,  however,  was  still  retained  as  a  descriptive  term,  though  it 
had  necessarily  acquired  a  new  and  technical  sense. 

[1]  The  defendant  may  shew  that  the  act  complained  of  was  done  by  him  as 
z.  judge,  z.  juror,  a  ivitness  ov  party  in  the  course  of  a  judicial  proceeding,  whe- 
ther civil  or  criminal.  2  Inst.  228  ;  2  Roll.  R.  198  ;  Palm.  144  ;  1  Viner's 
Ab.  387  ;  Cro,  Eliz.230  ;  Lake  v.  King,  1  Sannd.  131 ;  or  as  a  member  of  a 
military  court  martial  or  courtof  inquiry,  Jekyl  v.  Sir  John  Moore,  2  N.  R.  24lJ 
Home  V.  Bentinckj  8  Price  226. 


PLEA— GENERAL  ISSUE.  456 

Under  this  plea  the  defendant  may  also  shew  that  the  publication 
complained  of  was  procured  by  the  contrivance  of  the  plaintiff,  with 

So  the  defendant  may,  under  the  general  issue,  show  that  the  publication  was 
&  ■petition  to  the  Legislature  for  redress  of  grievances.  See  Hare  v.  Mellen,  3 
Lev.  169;  4  Co.  14,  and  the  resolution  of  the  House  of  Comnions  in  England 
in  Kemp  v.  Gee,  9  Feb'y,  8  Will,  iii.,  supra  p.  245 ;  that  the  words  alleged  to 
be  libellous  were  spoken  by  him  as  a  member  of  the  Legislature  on  the  floor  of 
the  House.  1  Black.  Comm.  164  ;  King  v.  Lord  Abingdon,  1  Esp.R.  226  ; 
Rex  V.  Creevy,  1  Maule  &  Sel.  273  ;  Hastings  v.  Lusk,  22  Wendell  417,  per 
Chancellor  Walworth  ;  4  Mass.  R.  1  ;  3  Pick.  314  ;  or  upon  an  application  in 
the  usual  course  to  a  magistrate  or  peace  officer  for  process.  Ram  v.  Lamley, 
Hutt.  133.  See  also  Barbaud  v.  Hookhara,  5  Esp.  C  109  ;  Johnson  v.  Evans, 
3  Esp.  C.  32  ;  Burton  v.  Worley,  4  Bibb.  38  ;  and  Shock  v.  McChesney,  4 
Yeales507.  Or  that  the  publication  took  place  in  the  usual  course  of  a  civil  or 
criminal  proceeding  in  courts  of  justice.  1  Roll.  33  ;  4  Coke  14  ;  2  Burr.  817  ; 
Cro.  J.  432  ;   3  Black.  Comm  126.  10  Mod.  210,  219, 300.    Str.  691.   Dyer  285. 

So,  the  defendant  may,  under  the  general  issue,  show  that  the  words  were 
spoken  by  him  as  an  advocate  or  counsel  on  the  trial  of  a  cause,  and  that  they 
were  relevant  to  the  matter  in  issue.  Such  seems  the  unavoidable  conclusion  to 
be  drawn  from  the  cases  of  Brooke  v.  Sir  Henry  Montague,  Cro.  Jac.  90,  and 
Hodgson  V.  Scarlett,  1  Barn.  &  Aid.  232,  notwithstanding  the  doubts  suggested 
by  the  learned  editor.    Supra  page  254,  note  (n),  and  infra  page  400,  note  (jn). 

Whether,  under  the  plea  of  the  general  issue  the  defendant  may  show  that 
the  publication  is  a  true  and  faithful  account  of  a  judicial  proceeding,  or  must 
plead  the  facts  specially  to  enable  him  to  give  the  proof,  is,  perhaps,  questiona- 
ble. Learned  judges  have  doubled  upon  the  question.  Curry  v.  Walton,  1  Bos. 
&  Pul.  525  ;  and  the  able  author  of  this  most  valuable  treatise  had  serious  difficul- 
ty in  making  up  his  mind  in  reference  to  it.  The  most  prudent  course,  there- 
fore, as  the  question  still  remains  undecided,  probably  is,  to  plead  it  specially  ; 
and  if  it  be  advisable  to  do  so  where  the  publication  relates  to  a.  judicial  proceed- 
ing,  ii  c\eax]y  is  so  when  it  relates  to  u  parliamentary  proceeding;  the  latter, 
it  seems,  not  being  regarded  with  the  same  favor  as  the  former.  See  supra  p. 
261  and  note  (/). 

In  reference  to  the  question  whether,  in  the  case  o{ privileged  communications, 
it  is  necessary  to  plead  the  defence  specially,  it  may  be  well  to  add  what  was 
said  by  Lord  Denman,  C.  J.,  in  the  case  of  Lillie  v.  Prin.  The  defendant,  an 
attorney,  was  prosecuted  in  an  action  for  a  Zife/ for  writing  a  letter  to  a  former 
client,  warning  him  not  to  have  any  thing  to  do  with  the  plaintiff.  The  ques- 
tion submitted  to  the  court  was,  whether  under  the  new  rules  of  pleading  adopt- 
ed in  England  in  Hilary  Term,  4  Wm,  IV.,  the  defence  of  privileged  commu- 
nication should  be  specially  pleaded.  Lord  Denman  said,  "  We  are  all  of  opin- 
ion that  this  defence  does  not  require  to  be  pleaded  specially.      It  goes  to  the 


456  CIVIL  REMEDY— DEFENCE. 

a  view  to  an  action,  for  in  such  case  he  was  the  voluntary  author  of 
the  mischief  (c), 

He  mav  also  shew,  under  this  plea,  that  the  action  has  been  dis- 
charged by  matter  subsequent  as  by  accord  and  satisfaction  Qd'),  or 

by  a  release. 
[  *457  ]         *Next,  in  what  cases  is  the  defendant  confined  to  the 

plea  of  the  general  issue.  Where  the  defendant  seeks  sim- 
ply to  deny  the  fact  of  publishing  the  alleged  slander  or  its  application, 
or  consequences,  according  to  the  ordinary  and  elementary  rule  of 
pleading,  he  must  confine  his  plea  to  the  general  issue,  and  cannot 
plead  the  matter  specially,  for  though  it  were  specially  pleaded,  it 
Yfould  still  amount  but  to  the  general  issue. 

So  it  seems  that  in  all  cases  where  the  circumstances  and  occasion 
of  the  speaking  the  words,  or  publishing  the  libel,  do  not  furnish  an 
absolute  bar  to  the  action,  without  regard  to  the  defendant's  motives 
and  intention,  but  merely  throw  it  on  the  plaintifif  to  prove  malice  in 
fact,  the  defendant  cannot  plead  such  occasion  and  circumstances 
specially,  but  must  plead  the  general  issue  ;  for  such  facts  do  not 
supply  an  absolute  bar  to  the  action,  but  merely  a  continual  one,  the 
condition  being  the  absence  of  express  or  actual  malice,  which  is 
always  a  question  for  the  jury.  Such  facts,  therefore,  cannot  be 
pleaded  specially,  for  if  they  were,  the  effect  would  be  to  take  away 
that  question  of  fact  from  the  consideration  of  the  jury,  upon  which 

very  root  of  the  action.  It  shows  the  party  not  guilty  of  malice,  and  consequent- 
ly it  is  open  to  him  without  having  pleaded  it."  5  Adolph.  &  Ellis  645  ;  1 
Neville  &  Perry  10  ;  and  2  Harr.  &  WoU.  R.  645,  s.  c.  See  also  what  is  said 
by  Chancellor  Walworth  on  this  question  in  Hastings  v.  Lusk,  22  Wendell 
416. 

(c)  King  V.  Waring  and  ux.  5  Esp.  C.  13.  See  also  Smith  v-  Wood,  3 
Camp.  323.  Where  the  defendant  having  shewed  to  the  witness,  at  the  request 
of  the  latter,  a  caricature  of  the  plaintiff,  it  was  held  that  this  was  not  sufficient 
to  support  the  action.  See  also  Weatherstone  v.  Hawkins,  1  T.  R.  110  [IJ. 

(d)  Lane  v.  Applegate,  1  Starkie's  C  97.  The  plaintiff  agreed  to  waive  his 
light  of  action,  if  the  defendant  would  destroy  certain  documents,  which  the  de- 
fendant accordingly  did,  and  it  was  held  that  this  evidence  was  admissible  in  bar 
of  the  action  under  the  general  issue. 

[1]  See  note  [1]  p.  208  supra. 


PLEA— GENERAL  ISSUE.  457 

the  whole  case   'depended  (e)  the  decision  of  which  lay     [  *458  } 
■within  their  own  peculiar  province. 

Such  a  plea  would  be  bad  in  point  of  law,  in  reference 
to  the  ordinary  and  elementary  principles  of  pleading ;  for  every 
plea  ought  to  disclose  such  facts  as,  if  they  be  true  and  stand  un- 
contradicted and  unqualified,  supply  an  answer  to  the  action.  But 
in  the  class  of  cases  alluded  to,  all  the  facts  might  be  true,  and  yet 
by  reason  of  the  existence  of  express  malice  they  would  afford  no 
answer  to  the  action. 

It  seems,  therefore,  to  be  clear  in  principle,  that  whenever  the 
occasion  and  circumstances  of  the  speaking  or  publishing  do  not 
furnish  an  absolute  bar  to  the  action,  but  merely  throw  it  on  the 
plaintiff  to  prove  malice  in  fact,  the  defence  cannot  be  specially 
pleaded,  but  must  be  given  in  evidence  under  the  general  issue  (/). 

If  the  repetition  of  slander,  from  the  report  of  *another,  affords 
not  an  absolute  and  peremptory  bar  to  the  action,  but 
merely  a  qualified  one,  dependent  on  the  absence  of  ex-     [  *459  ] 
press  malice,  it  seems  to  be  very  doubtful  whether  such 
a  defence  can  be  specially  pleaded  (^).  [1]. 

Where  the  action  is  brought  for  claiming  title  to  an  estate,  by 
means  of  which  the  plaintiff  is  prevented  from  selling  or  letting  it, 
and  the  declaration  alleges  that  the  defendant  asserted  a  false  title, 
knowing  it  to  he  false,  if  the  defendant  has  in  fact  any  colour  of 
claim,  he  should  plead  the  general  issue ;  by  which  means  the  plain- 
tiff will  be  obliged  to  prove,  under  the  general  issue,  that  the  defen- 
dant knew  it  to  be  false  (li)  ;  and  the  fact  of  knowledge  cannot,  it 
seems,  be  traversed  in  pleading  (€). 

(e)  Abbott,  L.  C.  J.  in  the  case  of  Lewis  v.  Walter,  4  B.  &  A.  605,  intimat- 
ed, that  special  matter  of  defence  could  not  be  pleaded  in  bar,  unless  it  supplied 
an  answer  to  the  chaige  of  malice.  If  the  plea  were,  in  addition  to  the  dis- 
closure of  such  facts  as  rendered  proof  of  actual  malice  essential,  also  to  nega- 
tive the  existence  of  malice,  it  would  be  demurrable  ;  for,  contrary  to  the  first 
rules  of  pleading,  it  would  both  deny  that  which  the  plaintiff  would  be  bound 
to  prove  njpder  the  general  issue,  and  it  would  confess  and  avoid. 

(/)  See  Lewis  v.  Walter,  4  B.  &  A.  605. 

{g)  See  Lewis  v.  Walter,  4  B  &  A.  605,  supra  337. 

(/t)  2  East.  237. 

(j)  4  Co.  18.  Cro.  J.  398.  Probably  so  held  because  there  could  be  no  pro- 
per venue.  [1]  See  note  [11  p.  340,  supra. 


459  CIVIL  REMEDY— DEFENCE. 

As  the  action  for  a  malicious  prosecution,  is  an  action  on  the  case 
in  -nhich  the  plaintiff  is  bound  to  allege  all  the  circumstances  of  the 
prosecution,  and  that  it  was  instituted  maliciously  and  without  pro- 
bable cause,  the  proper  plea  in  bar  is  the  general  issue. 

2dlj.  On  the  other  hand,  ic  seems  to  be  clear,  that  in  all  cases 
where  the  occasion  or  circumstances  attending  the  speak- 
[  *460  ]  ing  or  publishing,  'furnish  an  absolute  bar  to  the  action, 
the  defence  may  be  specially  pleaded ;  for,  in  all  such 
cases,  the  plea  admits  the  facts  alleged  by  the  plaintiff,  but  shews, 
by  the  allegation  of  other  additional  facts,  that,  upon  the  whole  of 
the  case,  the  plaintiff  is  not  entitled  to  recover :  in  other  words,  the 
defendant  by  his  plea  confesses  and  avoids  the  statement  made  by 
the  plaintiff;  and,  therefore,  he  may  plead  (y)  specially  that  the  im- 
putation was  true,  that  the  words  were  spoken,  or  the  alleged  libel 
published  by  the  defendant,  as  a  member  of  cither  house  of  parlia- 
ment, in  the  course  of  his  parliamentary  duty  (/c).  By  a  judge  act- 
ing in  his  judicial  capacity  (Z).  By  an  advocate  in  the  management 
of  a  cause  Avhere  they  are  pertinent  to  the  issue,  and  have  been  sug- 
gested by  the  client  (wz).  By  a  party  to  a  parliamentary  or  judicial 
proceeding,  according  to  the  ordinary  course  of  such  proceed- 
ings (w). 

So,  the  defendant  may  not  only  by  means  of  a  special 
[  *461  ]     plea  justify  his  act,  but  he  may  also  show  by  *extrinsic  mat- 
ter, that  the  words  or  alleged  libel  are  not  in  their  own 
nature  actionable. 

For  although  such  a  defence  involves  a  denial  of  that  which  the 
plaintiff,  under  the  plea  of  the  general  issue,  would  bo  bound  to 
prove,  that  is,  that  the  Avords  or  libel  were  really  used  and  applied 
in  the  injurious  sense  and  manner  alleged  by  the  plaintiff;  yet,  it 
admits  the  speaking  or  publishing  the  Avords  or  libel  stated,  and  sup- 
plies facts,  which,  if  true,  show  that  the  matter  published  is  not  in 

(j )  Such  a  defence,  as  will  be  seen  must  be  pleaded  specially  ;  see  below  [1]. 
(A)  1  Esp.  C.  220.  1  W.  &  M.  st.  2.  c.  2.  R.  v.  Creevy,  1  M.  &  S.  273. 
(/)  2N.  R.  141.  • 

(m)  Cro,  J.  90.     Poph.  69.     See  Scarlett  v.  Hodgson,  1  B.  &  A.  232. 
(n)  Lake  d.  King,  1  Saund.  132.     3  Lev.  169. 
[1]  See  note  [1]  p.  456,  supra. 


SPECIAL  PLEA.  461 

its  ovfii  nature  actionable  ;  and,  consequently,  renders  the  allegations 
of  the  plaintiflF,  as  to  the  motives  of  the  defendant,  and  the  applica- 
tion of  the  matter  published,  \Nholly  immaterial  (o). 

The  general  rule,  as  laid  down  in  CromweWs  case  (p),  is,  that 
the  defendant  shall  never  be  put  to  the  general  issue  when  he  con- 
fesses the  words  and  justifies  them,  or  confesses  the  words,  and  by 
special  matter  shows  that  they  are  not  actionable. 

And  therefore  it  has  been  held  that,  in  an  action  for  calling  the 
plaintiflf  a  murderer,  it  may  be  pleaded  that  the  word  was  used  in 
the  course  of  a  conversation  about  unlawful  hunting,  and 
that  the  words  merely  imported  that  the  plaintiff  was  *a  [  M62  ] 
murderer  of  hares  (5).  So,  where  the  plaintiff  declared 
upon  an  imputation  of  an  unlawful  maintenance,  it  was  held  that  the 
defendant  might  justify,  by  showing  that  the  words  were  used  m  ref- 
erence to  a  lawful  maintenance  (r). 

So  in  the  case  of  Kinnersley  v.  Cooper  (s).  The  plamtiff  de- 
clared that  he  had  taken  an  oath,  which  was  recorded  m  the  court 
of  the  Guildhall,  in  a  judicial  proceeding  ;  and  that  the  defendant 
speakincr  of  that  oath,  had  said,  that  he  had  sworn  falsely.  The  de- 
fendant/m  his  plea,  denied  that  any  such  oath  had  been  taken  ;  and 
the  plaintiff  demurred,  on  the  ground  that  the  taking  the  oath  was 
but  conveyance  to  the  action,  and  not  traversable  ;  and  secondly, 
that  the  plea  was  bad,  since  it  amounted  to  the  general  issue.  But 
the  justices  were  of  opinion  that  the  matter  was  traversable,  since 
the  action  was  grounded  upon  it. 

In  the  case  of  Lord  Oromwell  v.  Benny  (0,  the  plaintiff  declared 
in  scandalum  magnatum  against  the  defendant,  for  having  charged 
him  with  liking  those  who  maintained  sedition. 

The  defendant  pleaded  that  he  was  vicar  of  Northlin- 
ham,  which  was  a  benefice  with  the  *cure  of  souls  ;  and     [  *4G3  ] 
that  the  plaintiff  procured  J.  T.  and  J.  G.  to  preach  sev- 
erally in  the  church  of  Northlinham  ;  who,  in  their  sermons,  in- 
veighed against  the  Book  of  Common  Prayer,  which  was  established 
by  the  Qileen  and  the  whole  parliament  in  the  first  year  of  her  reign, 

(0)  If  the  fact  be  justified,  the  motives,  intention  and  manner  are  immaterial. 
Burr  807.  (p)  4  Rep.  14.     Pooh.  66.  (?)  4  Rep.  14. 

(r)  Cro.  Jac.  90.         [s)  Cro.  E.  168.     4  Rep.  14.         (0  4  Rep.  14 


463  CIVIL  REMEDY— DEFENCE. 

and  affirmed  it  to  be  superstitious  and  impious  ;  upon  whicli  the 
plaintiff  and  defendant,  speaking  in  the  said  church  of  these  ser- 
mons, because  the  vicar  knew  that  they  had  no  licence,  nor  were 
authorized  to  preach,  Avhen  they  were  ready  to  preach,  before  their 
sermons,  forbade  them,  but  they,  by  the  encouragement  of  tho 
plaintiff,  proceeded,  when  the  plaintiff  said  to  the  defendant,  "  Thou 
art  a  false  varlet,  I  like  thee  not."  To  which  the  vicar  said,  "  It 
is  no  marvel  that  you  like  not  of  me,  for  you  like  of  these  (innuendo 
the  said  J.  T.  and  J.  G.)  that  maintain  sedition  against  the  Queen's 
proceeding."  It  was  moved,  by  the"  plaintiff's  counsel,  that  the 
plea  was  bad,  since,  if  the  matter  contained  in  it  amounted  to  a  jus- 
tification, then  upon  a  dialogue  between  the  parties,  the  defendant 
was  not  guilty,  and  that  he  ought  to  have  pleaded  so,  and  given  the 
matter  in  evidence.  But  the  court  held,  that  the  defendant  had 
done  well  to  show  the  special  matter  by  which  the  sense  of  the  word 
sedition  appears,  upon  the  coherence  of  all  the  words,  not 
[  *464  ]  *to  mean  any  violent  and  public  sedition,  as  it  had  been 
described  to  mean,  and  as  ex  vi  termini  the  word  itself 
imports  (m). 

It  seems,  also,  that  the  defendant  may  either  plead,  or  show  by 
evidence  on  the  general  issue,  that  the  right  of  action  which  once 
existed  has  been  discharged  as  by  a  subsequent  release. 

It  seems  also  that,  in  general,  any  matter  which  in  law  discharges 
a  right  of  action,  for  any  slander  or  libel,  may  be  either  given  in 
evidence  under  the  general  issue,  or  may  be  specially  pleaded. 

Thus  the  defendant  may  give  accord  and  satisfaction  in  evidence 
under  the  general  issue  (a;). 

(h)  See  also  Biittridge's  case,  4  Co.  18.  The  vords  set  out  in  the  declar- 
ation were,  Mr.  Brittridge  is  a  perjured  old  knave,  and  that  is  to  be  proved  by 
a  stake  paiting  the  lands  of  H.  Martin  and  Mr.  Wright  ;  after  a  verdict  for  the 
plaintiff,  the  defendant  succeeded  in  arresting  the  judgment  ;  for  though  it  was 
held  by  the  court,  that  the  words  in  italics  were  actionable,  they  were  of  opin- 
ion, that  their  force  was  explained  away  by  the  latter,  which  showed  that  no 
judicial  perjury  was  intended,  so  that,  had  the  latter  words  been  omitted  the 
plaintiff  might  have  retained  his  verdict ;  but  had  the  plaintiff  omitted  the  lat- 
ter words,  the  defendant  might  have  shown  the  context  by  his  plea,  and  so  have 
defeated  the  action. 

(x)  Lane  v.  Applegate,  1  Starkie's  C.  9T.  But  the  statute  of  limitations 
must,  as  will  be  seen,  be  pleaded. 


SPECIAL  PLEA.  464 

So  the  defendant  may,  by  his  plea,   disclose   special 
matter  which  shows  that  the  plaintiff  has  *sustained  no     [  *465  ] 
damage  from  the  words,  provided  the  special  damage  be 
the  gist  of  the  action. 

Where  the  plaintiff  alleged  that  by  reason  of  the  speaking  of  the 
words  he  had  lost  his  marriage  with  J.  S.  the  defendant  pleaded 
that  J.  S.  was  the  aunt  of  the  plaintiff  (v/)  :  but,  in  such  a  case, 
the  plea  of  no7i  damriificatus  would  be  bad  (s). 

In  the  next  place  there  are  some  grounds  of  defence  which  must 
be  pleaded  specially,  and  which  cannot  be  disclosed  in  evidence 
under  the  general  issue,  even  although  they  afford  a  conclusive  bar 
to  the  action. 

In  the  first  place,  where  the  defendant  means  to  insist  that  tho 
imputation  is  true,  he  must  as  well,  it  seems,  upon  general  principles 
of  law,  as  on  considerations  of  policy  and  convenience,  plead  such  de- 
fence specially  [a  a]. 

On  legal  principles  he  must  do  so,  for  the  fact  which  suppUes  the 
justification  is  collateral  to  the  cause  of  action,  and  the  proof  of  it 
does  not  contradict  or  repel  any  matter  which  the  plaintiff  would  be 
bound  to  prove  (a). 

*0n  grounds  of  convenience  and  policy,  it  is  obviously  [  *466  ] 
necessary,  that  a  party  charged  with  the  commission  of 

(y)  Dyer  26.  It  has  been  said,  that  the  defence  would  not  be  admissible 
under  the  plea  of  the  general  issue.     B.  N.  P.  7.  tamen  qu.  {z)  lb. 

[a  a]  So  the  defendant  is  not  at  liberty  to  give  evidence  in  mitigation  of 
damages  of  any  fact  which  would  be  evidence  to  prove  a  justification  of  any 
part  of  the  libel,  for  he  ought  to  justify  as  to  that  part.  Vessey  v.  Pike,  3  Carr. 
&  Payne  512. 

(a)  See  Smith  v.  Richardson,  Willes  20.  It  seems,  however,  to  be  very 
questionable,  whether  the  rule  does  not  rest  better  upon  the  foundation  of  policy 
and  convenience,  than  on  the  strict  rule  of  pleading  ;  in  other  words,  it  is 
doubtful  whether  the  falsity  of  the  charge  is  not,  in  principle,  essential  to  the 
right  of  action.  This  is,  however,  a  subject  of  mere  speculation  ;  for  undoubt- 
edly, the  rule  is  perfectly  well  settled  on  the  grounds  of  public  policy,  that  such  a 
justification  must  be  pleaded  ;  and  even  independently  of  that  rule,  the  proof 
of  the  truth  of  the  charge  would  lie  on  the  defendant,  for  the  law  would  pre- 
sume the  plaintiff's  innocence  till  the  contrary  appeared.  Vide  supra,  p.  229, 
and  p.  5.  in  the  note. 

Vol.  1.  61 


466  CIVIL  REMEDY— DEFENCE. 

an  illegal  or  immoral  act,  should  be  apprized,  by  means  of  a  special 
plea,  of  the  nature  and  circumstances  of  the  charge,  in  order  that 
he  may  be  prepared  to  meet  it,  and,  if  it  be  unfounded,  to  refute  it. 

The  rule  of  law  upon  this  head  has  long  been  settled,  that  the 
defendant,  if  he  mean  to  rely  upon  the  truth  of  that  which  he  has 
published,  either  in  bar  of  the  action  or  in  mitigation  of  damages, 
must  plead  it  specially  [1]. 

Formerly  a  distinction  was  made  in  this  respect  between  words 
imputing  an  offence  generally,  and  such  as  charged  a  particular  and 
specific  one. 

In  the  case  of  Smith  v.  Richardson  (5),  the  twelve  judges  were 
unanimously  of  opinion,  that  where  the  words  import  a 
[  *467  ]  general  felony,  as  *"  Thou  art  a  thief,"  or  "  Thou  stolest 
a  horse,"  or  any  other  thing  not  specifying  the  person 
from  whom  or  when  and  where  it  was  stolen,  the  defendant  ought 
not,  upon  the  general  issue,  to  be  allowed  to  give  the  fact  in  evi- 
dence to  mitigate  damages.  The  words  in  the  principal  case  were, 
"  John  Smith  is  a  rogue,  and  hath  stolen  my  beer  ;  John  Smith  has 
robbed  me  of  my  beer  ;"  and  eight  of  the  judges  were  of  opinion, 
that  in  no  case  whatever  where  the  words  imported  felony  or  treason, 
such  evidence  ought  to  be  admitted  on  not  guilty  pleaded  ;  but  four 
were  of  opinion  that  it  might,  where  the  words  imported  a  particular 
felony. 

But  in  the  case  of  the  Bishop  of  Salisbury  v.  iVasA,  cited  in  the 
above  case,  which  was  an  action  for  saying  of  the  plaintiff,  "  He 
preacheth  nothing  but  lies  in  the  pulpit,"  the  defendant  pleaded  not 
guilty,  and  his  counsel  offered  to  give  evidence  of  the  truth  of  the 
words  in  mitigation  of  damages ;  but  Lord  Macclesfield  refused  to 
admit  it  with  great  indignation. 

Where  a  particular  offence,  not  capital,  was  charged(c),  evidence 
pf  the  truth  was  allowed,  under  the  general  issue. 

[1]  This  doctrine  is  fully  recognized  in  Andrews  v.  Van  Duzer,  11  Johns.  R. 
38  ;  Shephard  v.  Merrill,  13  Id.  475  ;  Van  Ankin  y.  Westfall,  14  Id.  233  ;  Else 
V.  Ferris,  Anthon's  N.  P.  23;  and  Barns  v.  Webb,  1  Tyler  17.  As  to  giving 
the  truth  in  evidence  in  mitigation  of  damages,  see  page  233  supra,  note  [!]• 

(i)  Willes  20  (c)  B.  N.  P.  7. 


SPECIAL  PLEA.  467 

But  in  the  case  of  Underwood  v.  Parkes,  the  defend- 
ant pleaded  not  guilty  ((^),   and  offered  *to  prove  the     [  *468  ] 
words  to  be  true  in  mitigation  of  damages,  v?hich  the 
chief  justice  refused  to  permit,  saying,  that  at  a  meeting  of  all  the 
jadges  upon  a  caje  that  arose  in  the  Common  Pleas,  a  large  major- 
ity "of  them  had  determined  not  to  allow  it  for  the  future,  but  that  it 
should  be  pleaded,  whereby  the  plaintiff  might  be  prepared  to  defend 
himself,  as  well  as  to  prove  the  speaking  of  the  words.      That  this 
was  now  a  general  rule  amongst  them  all,  which  no  judge  would 
think  himself  at  liberty  to  depart  from;  and  that  it  extended  to  all 
sorts  of  words,  and  not  barely  to  such  as   imported   a  charge  of 

felonv. 

Where  the  justification  is  that  the  defendant  has  published  no  more 
than  a  true  and  faithful  account  of  s.  judicial  proceeding,  considera- 
ble doubt  has  been  entertained  upon  the  question,  whether  the  de- 
fence must  be  pleaded  specially,  or  whether  it  be  available  under  the 
general  issue;  and  the  point,  though  it  be  exceedingly  important, 
has  not  yet  been  finally  decided  [1]. 

An  action  was  brought  against  the  editor  of  the  Times  newspaper 
(e\  for  a  libel  on  the  plaintiff;  the  publication  complamed  of;  pur- 
ported to  be  an  account  of  an  apphcation  to  the  Court  of  Kmgs 
Bench,  for  an  information  against  the  plaintiff  and  Mr. 
Bingham,  both  justices  of  the  *peace  for  Hampshire,  for  re-     L  ^^^^  J 
fusing  to  license  an  inn  at  Gosport.  The  defendant  loleaded 
the  general  issue  ;  and  at  the  trial,  after  the  plaintiff  had  proved  the 
publication  of  the  paper  by  him,  a  person  whom  he  employed  to  collect 
legal  intelligence  for  the  use  of  his  paper,  was  called,  in  order  to  prove 
that  the  report  was  a  true  and  faithful  account  of  what  had  passed  m 
the  Court  of  King's  Bench  upon  the  motion.    It  was  objected  on  the 
other  side,  that  the  defence  ought  to  have  been  put  upon  the  record, 
and  could  not  be  given  in  evidence  under  the  general  issue.      Ihe 
objection,  however,  was  overruled  by  Eyre,  C.  J.  and  the  jury  found 
a  verdict  for  the  defendant.     Afterwards  a  motion  was  made  m  ar- 
rest of  judgment ;  one  ground  for  which  was,  that  the  matter  prov- 

(d)Str.l200.  (e)  Curry..  Walter,  1B.&  P.  525. 

[11  See  note  f  ll  page  456  supra. 


471  CIVIL  REMEDY— DEFENCE. 

ed  by  the  defendant,  at  the  trial,  had  been  improperly  received  in 
evidence  under  the  general  issue,  and  ought  to  have  been  pleaded 
in  bar  to  the  action.  After  argument,  the  court  doubted  upon  this 
point,  the  case  stood  over,  and  no  judgment^was  ever  given. 

Without  presuming  to  venture  an  opinion  on  so  important  a  point 
Tvhich  remanis  still  undecided,  it  may  be  observed,  that  the  question 
seems  to  resolve  itself  mainly  into  the  consideration,  whether  the 
courts  will  deem  it  proper,  on  principles  of  convenience,  to  adhere 
to  the  ancient  rule  of  law,  according  to  which  it  seems 
[  *470  ]  *that  such  a  collateral  ground  of  defence  ought  to  be  spe- 
cially pleaded,  or  will  relax  the  rule  in  the  present  case 
as  has  been  done  in  many  others. 

In  the  first  place,  the  defence  is  founded  upon  considerations  of 
external  policy,  for,  when  it  has  been  established,  it  does  not  destroy 
or  contradict  any  matter  which  is  essential  to  the  cause  of  action, 
or  which  the  plaintiflf  would  be  bound  to  prove  under  the  general 
issue.  Such  a  defence  admits  a  publication  of  noxious  matter,  and 
the  malice  of  the  publisher,  however  inveterate,  is  wholly  immate- 
rial. 

According,  therefore,  to  the  general  and  elementary  principles  of 
pleading,  a  justification  of  this  nature,  which  confesses  the  facts  al- 
leged by  the  plaintiflf,  and  avoids  them  by  additional  matter,  ought 
to  be  pleaded  specially  (/). 

Such  a  defence  diflTers  most  essentially  from  all,  where  the  occa- 
sion of  speaking  or  publishing  enures,  prima  facie,  as  a  protection 
to  the  defendant,  and  throws  it  on  the  plaintiff  to  prove  actual  malice, 
for  then,  as  has  already  been  observed,  the  defence  not  only  mai/, 
but  must  be  offered  in  evidence  under  the  general  issue,  and  cannot 
be  pleaded  specially,  because  there  the  occasion  does  not  supply  an  ab- 
solute bar  to  the  action  ;  the  defence  in  question,  on  the 
[  *471  ]  other  "hand,  operates  as  a  peremptory  bar  to  the  action, 
and,  at  all  events,  mai/  be  pleaded  specially. 

On  the  contrary,  such  a  defence  resembles  a  justification  founded 
on  the  truth  of  the  publication,  for  though  the  defendant  does  not 
allege  that  the  fact  imputed  was  true,  yet  he  insists  that  his  state- 

(/)  See  Smith  v,  Richardson,  Willes  20. 


SPECIAL  PLEA.  471 

ment  was  true,  namely,  that  the  imputation  was,  in  fact,  part  of  a 
judicial  proceeding,  which  he  has  faithfully  reported.  In  the  one 
case  as  well  as  the  other,  the  defence  is  founded  on  considerations 
of  extrinsic  policy. 

-It  does  not  indeed  by  any  means  necessarily  follow,  that,  because 
such  a  defence  mmjhe  pleaded  specially,  it  must,  therefore  be  plead- 
ed specially ;  inasmuch  as  the  general  rule  of  pleading  has  been 
much  relaxed,  and  many  exceptions  have  been,  from  time  to  time, 
introduced.  Still  the  question  is,  whether  the  case  be  an  exception, 
or  not,  to  the  general  rule,  or  whether,  on  grounds  of  policy  and 
convenience ,  it  ought  to  be  an  exception,  and  the  onus  of  proving 
the  affirmative  clearly  lies  on  those  who  assert  it. 

In  the  case  of  Ourrij  v.  Walter  (.(/),  though  the  evidence  was 
admitted  at  Nisi  Prius,  under  the  general  issue,  yet  the  court  were 
afterwards  equally  divided  upon  the  subject,  and  no  judgment  was 
ever  given.  This  case  therefore  supplies  *no  authority 
■whatever  for  relaxing  the  general  rule  of  pleading  in  [  *472  ] 
such  cases. 

The  practice,  on  the  contrary,  has  been,  with  a  few  exceptions, 
to  plead  such  a  defence  specially  (/t)  [1]. 

Considerations  of  policy  and  convenience  concur  with  the  ordinary 
practice.  It  frequently  happens,  where  such  a  defence  is  set  up, 
that  the  whole  question  turns  upon  legal  points,  which  are  decided 
with  greater  convenience,  with  more  expedition,  and  with  less  ex- 
pense to  the  parties,  when  raised  upon  the  face  of  the  record  by  the 
pleadings,  than  where  the  defence  is  reserved  for  the  trial,  and  then 
for  the  first  time  disclosed ;  and  it  would  frequently  be  highly  incon- 
venient that  it  should  be  left  to  the  court  and  jury,  at  Nisi  Prius,  to 
apply  the  report  to  the  alleged  libel,  and  to  distinguish  between 
what  was  justifiable  and  what  was  not  so  (i). 

{g)  1  B.  &  P.  525. 

(h)  See  Astley  v.  Yonge.  Burr.  807,  which  was  previous  to  Curry  v.  Walter, 
and  see  Stiles  v.  Nokes,  7  East.  493. 

[1]  See  also  Lewis  v.  Clement,  3  Barn.  &  Aid,  702,  tried  in  1818,  in  which 
a  special  plea  was  interposed  ;  and  Flint  v.  Pike,  4  Barn.  &  Cres.  473. 

(j)  See  7  East,  493,  where  it  was  held,  that  where  part  of  a  publication  consists 
of  a  report  of  judicial  proceedings,  and  the  rest  of  comment,  since  a  separation 


473  CIVIL  REMEDY— DEFENCE. 

•Where  the  defence  is,  that  the  defendant  merely  repeated  that 
which  he  heard  from  another,  and  that  he  divulged  his 
[  *473  ]  authority  at  the  time  of  repetition,  the  ordinary  course 
has  been  to  plead  the  justification  specially  (Jc).  And  it 
has  been  held  that,  without  such  a  plea,  the  fact  is  not  available, 
even  in  mi  igaton  of  damages  (T)  ;  and,  therefore,  it  would  not  be 
safe  to  trust  such  a  defence  to  the  general  issue  [1].  It  seems 
however  to  be  doubtful,  whether  such  a  plea,  unless  it  disclosed  cir- 
cumstances which  rendered  the  question  of  actual  malice  immaterial, 
would  be  good  in  law,  as  the  eflfect  would  be  to  withdraw  the  qaes- 
tion  of  actual  malice  from  the  consideration  of  the  jury  (m). 

By  the  sta".  21  J.  1,  c.  16,  s.  3,  it  is  enacted,  that  all  actions  on 
the  case  (other  than  for  slander)  shall  be  commenced  and  sued 
within  six  years  next  after  the  cause  of  such  action  or  suit,  and  not 
after.  And  the  said  action  on  the  case  for  words  within  two  years 
after  the  words  spoken,  and  not  after.  It  has  been  held,  under  this 
statute,  that  the  latter  limitation  applies  to  words  in  themselves  ac- 
tionable only,  and  not  to  cases  where  the  special  damage 
[  *474  ]  (w)  is  the  gist  of  *the  action,  nor  to  written  slander, 
and  it  has  been  decided  that  cases  of  scandalum  magna- 
tum  are  not  within  the  latter,  though  they  are  within  the  former, 
limitation  (o). 

It  seems  to  be  now  fully  settled,  that  if  the  defendant  mean  to 
avail  himself  of  this  statute  (^p),^Q  must  in  all  cases  plead  it. 

Where  the  Avords  are  actionable,  the  time  begins  to  reckon  from 
the  speaking  of  the  words,  but  where  the  special  damage  is  the 
gist  of  the  action,  it  seems  that  it  would  not  be  sufficient  for  the  de- 
fendant to  aver,  in  his  plea,  that  he  did  not  speak  the  words  within 

is  necessary,  for  the  purpose  of  defence,  the  defendant  ought  to  take  upon  him- 
self the  burden  of  making  it,  in  order  that  the  court  may  see  what  parts  he 
means  to  justify.  And  the  defendant  not  having  done  so,  the  court  held  that 
the  plea  was  bad,  and  would  not  permit  the  defendant  to  amend. 

{k)  Woolnolh  v.  Meadows,  5  East.  463. 

(I)  Mills  V.  Spencer,  Holt's  C.  533. 

(m)  See  4  B.  &  A.  605.  supra  457. 

(n)  6  Bac.  Ab.  241.     Cro.  Car.  193.     Salk.  206.     1  Sid.  95. 

(o)  Cro.  Car.  535.  {p)  2  Will.  Saund.  63.  a. 

fl]  See  note  [1],  p.  340.  supra. 


SPECIAL  PLEA.  474 

six  years,  because,  though  that  was  the  fact,  the  special  damage, 
which  is  the  cause  of  action,  may  have  arisen  within  the  six  years  ; 
he  ought,  therefore,  to  plead  that  the  cause  of  action  did  not  ac- 
crue within  the  limit. 

But  where  special  damage  is  consequent  upon  actionable  words, 
it  is  (as  is  said)  sufficient  to  plead  that  the  defendant  did  not  speak 
the  words  within  the  limited  time. 

4thly.  How  special  matter  must  be  pleaded. 

Observations  upon  the  manner  of  pleading  relate  to  the  plea  of 
justification  generally,  to  particular  pleas,  or  to  the  joinder  of  dif- 
ferent pleas. 

*1.  To  the  plea  of  justification  generally.  [  *475  ] 

The  plea  of  justification  in  general  must  confess  the 
publication  as  laid  down  in  the  declaration,  otherwise  it  will  be  bad 
on  demurrer  {q)  ;  and  this  is  an  immediate  consequence  resulting 
from  the  great  rule  of  pleading,  which  requires  the  party  pleading 
either  to  confess  the  previous  matter,  and  avoid  it,  or  to  traverse 
it. 

In  Johns  v.  Gittens  (r),  the  words  laid  in  the  declaration  were, 
"  Thou  has  played  the  thief  with  me,  and  hast  stolen  my  cloth  and 
half  a  yard  of  velvet."  The  defendant  pleaded  that  the  plaintijBf 
was  his  tailor,  and  that  upon  such  a  day  he  delivered  to  him  a  yard 
and  a  half  of  velvet,  to  make  him  a  pair  of  hose,  and  he  made 
them  too  straight ;  by  reason  whereof  he  spoke  these  words,  "  Thou 
hast  stolen  part  of  the  velvet  which  I  delivered  you,"  denying  that 
he  spoke  any  words  aliter  vel  alio  modo. 

The  plaintiff  demurred,  and  it  was  held  that  the  plea  was  bad, 
for  not  confessing  the  words  laid  in  the  declaration  (s). 

*If  the   defendant  justify  specially,  it  will  not  be  nee-     [  *476  ] 
essary  for  him  in  his  plea  to  deny  the  innuendos  and 
epithets  contained  in  the  declaration  ;    for  if  the  fact  be  justifi- 

(q)  Jon.  307.  Cro.  Eliz.  153.  A  plea  of  justification  will  sometimes  cure  a 
defective  declaration.  The  words  were  "  He  is  forsworn,"  and  there  was  no 
averment  to  connect  them  with  a  judicial  oath  ;  but  the  plea  averring  that  the 
words  were  spoken  in  reference  to  a  judicial  oath,  it  was  held  that  the  defect 
was  cured.    Cro.  Car.  288.  (r)  Cro.  Eliz.  239. 

(5)  See  also  Cro.  Eliz.  153,  Bellingham  v.  Mynors. 


476  CIVIL  REMEDY— DEFENCE. 

ed  (O5  *t6  motive,  intention,  and  manner  are  immaterial.  Unless, 
from  the  particular  occasion  of  speaking  the  words,  the  day  or  the 
place  become  material,  the  plea  should  adopt  the  day  and  the  place 
stated  in  the  declaration  Avithout  a  traverse  ;  but  when  they  become 
material,  and  differ  from  those  stated  in  the  declaration,  the  plea 
should  traverse  the  speaking  of  the  words  on  the  day  or  at  the  place 
laid  in  the  declaration.  Thus,  if  the  plaintiif  declare  of  words 
spoken  at  B.,  in  the  county  of  Salop,  and  the  defendant  mean  to 
justify  the  publishing  them  in  a  judicial  proceeding  at  Westminster, 
he  should  traverse  (u)  the  publishing  them  at  B.,  in  Salop,  at  any 
time. 

2.  The  special  plea  of  justification,  grounded  upon  the  ti^uth  of 
the  publication,  may  be  considered,  first,  with  reference  to  the 
matter  contained  in  the  plea  ;  and,  secondly,  with  regard  to  the 
charge  complained  of  in  the  declaration. 

The  same  degree  of  certainty  and  precision  are  required  in  this 
plea  as  are  requisite  in  an  indictment  or  information. 
[  *477  ]  *In  Wyld  v.  Cookman  (a;),  the  words  were,  "  Thou 
wast  forsworn  in  such  a  leet,  on  such  a  day."  The  de- 
fendant pleaded  that  the  plaintiff  the  same  day  was  sworn  with 
others  before  the  steward,  to  present,  &c.  and  that  they  presented 
such  a  ditch  not  scoured  ad  nocuinenfum,  &c.  which  was  fase,  and 
so  justifies,  but  did  not  say  that  they  knew  it  to  be  false  of  their 
own  proper  knowledge.  It  was  moved,  on  demurrer,  that  they  might 
have  presented  it  upon  evidence.  Gawdy  and  Fenner,  Justices, 
held,  that  it  was  properly  and  commonly  to  be  intended  that  the 
presentment  was  false  of  their  own  knowledge,  and  so  perjury ;  and 
that  if  they  presented  it  upon  evidence,  the  plaintiff  ought  to  shew 
it  in  his  replication.  But  Popham,  J.  said,  that  a  man  may  not 
justify  by  intendment,  but  that  it  ought  to  have  been  precisely  alleg- 
ed.    But  there  was  another  defect  in  the  plea,  which  was  held  by  all 

(O  Burr.  807. 

(u)  See  the  case  of  Buckley  v.  Wood,  4  Rep.  14.  1  Salk.  222.  1  Will. 
Saund  82.  n.  3. 

(x)  Cro.  Eliz.  492,  as  to  the  degree  of  certainty  and  particularity  which  is 
requisite  in  a  plea.     See  the  cases  cited  below  478.  &c. 


SPECIAL  PLEA.  ^^'^ 

the  iustices  to  be  incurable,  namely,  the  want  of  an  allegation  that 
the  ditch  was  within  the  leet ;  for  if  not,  then  the  presentment  there- 
of was  out  of  their  charge,  and  there  was  no  perjury. 

Secondly,  as  to  the  nature   of  the  plea,  with  reference  to  the 
words  laid  in  the  declaration. 

*Where  the  original  charge  is  in  itself  specific,  the  L  *'»  J 
defendant  need  not  further  particularize  it  in  his  plea. 
In  an  action  on  the  case  (^)  for  calling  the  plaintifiF  thief  and  say- 
in.  that  he  stole  two  sheep  of  J.  S.,  the  defendant  pleaded  that  the 
plaintiff  stole  the  same  sheep,  by  reason  of  which  he  called  him 
thief,  as  well  he  might ;  and  the  plea  was  held  to  be  good  (2). 

Though  the  chage  imputed  to  the  plaintiff  be  general,  as  laid  m  the 
declaration,  the  defendant  must,  in  his  plea,  charge  him  with  specific 
(a)  instances  of  offences  of  the  same  nature  with  the  general  charge. 
Thus  a  defendant  is  not  at  liberty  to  charge  a  person  with  swindhng, 
without  shewing  specific  instances  of  it ;  for  whenever  one  charges 
another  with  fraud,  he  must  know  the  particular  instances  upon 
which  his  accusation  is  founded,  and  therefore  ought  to  disclose 

them  (6).  ,.      r.        n-      it,^ 

In  Morrice  v.  Langdale  (0,  which  was  an  action  for  calling  the 
plaintiff  (who  was  a  stockjobber)  a  lame  duck,  the  defendant  jus- 
tified, pleading    generally    that   the   plamtiff  had  not 
•fulfilled his  contracts.     Upon  demurrer.  Lord  Eldon,  0.     L   ^^y  J 
J  observed,  that  it  had  been  strongly  argued  in  support 
of  the  demurrer  to  the  plea,  that  in  consequence  of  its  generality 
the  plaintiff  must  proceed  to  trial  at  the  hazard  of  being  ab  e  to  pro- 
duce evidence  applicable  to  any  contract  which  he  ever  made.     But 
the  declaration  itself  was  defective,  and  the  plaintiff  had  leave  to 

amend.  .    .«.      •    ,•       en. 

In  the  case  of  mwman  v.  Bailetj,  the  plamtiff,  a  justice  of  the 
peace,  brought  an  action  against  the  defendant,  for  having  charged 
him  with  "  pocketing  all  the  fines  and  penalties  forfeited  by  dehn- 

(V)  Br.  action  sur  cas.  27  H,  8.  22.  pi.  3.  {z)  1  Roll.  Ab  87. 

(a)  Styles  118.     Strachey's  case.     See  the  illustrations  cited  below,  and 

Lane  v.  Howman,  1  Price  76.  .  v  „  -d    ,  p  o«i 

(b)  Johnson  V.  Stuart,  1  T.  R  748.  (c)  2  B.  &  P.  284. 

Vol.  I.  62 


479  CIVIL  REMEDY— DEFENCE. 

quents  whom  he  had  convicted,  without  distributing  them  to  the 
poor,  or  in  any  manner  accounting  for  a  sum  of  £bO  then  in  hand." 
The  defendant  pleaded  that  the  plaintiff  was  a  justice  of  the  peace, 
and  that  during  the  time  he  acted  as  such,  he  convicted  divers  and 
sundry  persons  respectively,  in  divers  and  sundry  fines  and  sums  of 
money,  for  and  on  pretence  of  their  having  respectively  committed 
divers  respective  oflfences  against  the  form  of  divers  statutes  of  this 
realm ;  which  said  respective  fines  and  sums  of  money,  amounting 
in  the  whole  to  £50,  he  received  of  the  respective  delinquents  so  by 
him  convicted,  and  had  not  paid  the  same  to  the  several  persons  to 
whom  the  same  ought  to  have  been  paid  by  virtue  of  the 
[  *480  ]  respective  statutes,  *but  had  kept  and  detained  the  same, 
&c.  To  this  there  was  a  special  demurrer,  and  the 
court  were  clearly  of  opinion  that  the  plea  was  bad,  because  it  did 
not  specify  any  one  fine  or  penalty  which  had  been  unjustly 
levied  (^d). 

The  matter  alleged  in  the  justification  to  be  true,  must,  in  every 
respect,  correspond  with  the  imputation  complained  of  in  the  declar- 
ation. Thus,  where  the  defendant,  in  the  first  instance,  charges  the 
plaintiff  with  having  feloniously  stolen  one  kind  of  chattel,  he  cannot 
afterwards  justify  by  pleading  that  the  plaintiff  had  really  been 
guilty  of  stealing  a  different  one  (^).  And  so  with  regard  to  every 
circumstance  at  all  material,  the  facts  set  up  by  way  of  justification 
in  the  plea  must  be  strictly  conformable  with  the  imputation  char-^ed 
in  the  declaration.  The  words  for  which  the  action  was  brou'^ht 
charged  the  plaintiff  with  having  been  a  bankrupt  on  the  first  day  of 
April,  in  the  12th  year  of  James  the  first.  The  defend- 
[  *481  ]  ant  pleaded  that  the  plaintiff  *was  a  bankrupt  on  the 
first  day  of  April,  in  the  15th  year  of  the  same  reign, 

(J)  Hil.  16  G.  3.  2  Chitty's  C.  T.  M.  665.  So,  where  a  libel  charged  an 
attorney  with  general  misconduct,  viz.  gross  negligence,  falsehood,  prevarication, 
and  making  out  expensive  bills  of  costs,  in  respect  of  business  done  for  the 
defendant,  a  plea  of  justification  merely  repeating  the  same  general  charges, 
without  specifying  any  particular  acts  of  misconduct,  was  held  on  demurre'r  to 
be  insufficient.  Holmes  v.  Catesby,  1  Taunt.  543  [1]. 
(e)  Hilsden  v,  Mercer,  Cro.  J.  676. 

[1]  See  Van  Ness  v.  Hamilton,  19  Johns.  R.  368. 


SPECIAL  PLEA.  481 

and  that  therefore  he  published  the  words ;  and  the  plea  was  held 
bad  (/),  because  it  was  not  averred  that  the  plaintiff  continued  a 
bankrupt  to  the  time  of  publishing  the  words,  for  he  might  after- 
wards recover  his  credit  in  trade. 

In  Fysh  V.  ThoroivgoodCg'),  the  plaintiff  declared  "  that  a'com- 
mission  issued  out  of  the  Exchequer,  directed  to  the  plaintiff  and 
one  J.  S,  by  force  whereof  they  took  and  returned  the  exammations 
of  several  witnesses,  and  that  thereupon  the  defendant  said,  that 
the  plaintiff  had  returned  as  depositions  the  examination  of  divers 
that  were  never  sworn."  The  defendant  pleaded  in  bar,  that  he 
did  return  the  examination  of  one  J.  S.  who  was  never  sworn.  Up- 
on demurrer,  it  was  adjudged  that  this  was  no  good  justification  m 
bar,  because  it  is  of  one  witness  only,  whereas  the  charge  was  in 

the  plural  number. 

Where  the  declaration  alleged  that  the  plaintiff  was  lawfully  possess- 
de  of  mines  and  ore  gotten  and  to  be  gotten  from  them,  and  was  m 
treaty  for  the  sale  of  the  ore  ;  and  that  the  defendant  pubhshed  a 
malicious,  injurious,  and  unlawful  advertisement,  caution- 
ing  persons  against  purchasing  'the  ore  per  quod  he  was     [   482  J 
prevented  from  selling  it ;  plea,  that  the  adventurers  or 
persons  having  an  interest  or  share  in  the  mine,  thought  it  their  duty 
to  caution  persons  against  purchasing  the  ore,  &c.,  as  persons  pur- 
chasing such  ore  would  be  called  on  for  the  amount,  and  that  a  bill 
in  equrty  was  about  to  be  filed  by  the  adventurers  ;  it  was  held,  on 
special  demurrer,  that  the  plea  was  insufficient,  both  because  it  did 
not  disclose  the  names  of  the  adventurers,  and  show  who  they  were  ; 
and  secondly,  because  it  did  not  show  that  the  defendant,  in  pub- 
lishing the  advertisement,  acted  under  the  authority  of  the  adven- 

turers  (h').  ^     i  • 

So  it  was  held,  that  a  plea  that  the  plaintiff  had  been  confined  m 
England  on  a  charge  of  high  treason,  was  not  supported  by  ])roof 
that  the  plaintiff  had  been  apprehended  by  virtue  of  a  warrant  from 
the  Duke  of  Portland,  one  of  the  secretaries  of  state,  on  suspicion 
of  high  treason  (i)- 

(/)  Upsheer  v.  Belts,  Cro.  J.  578.  (g)  Cro.  Eliz.  623. 

(h)  Rowe  V.  Roach,  1  M.  &  S.  304.         (i)  Bell  v.  Byrne,  13  East.  554. 


482  CIVIL  REMEDY— DEFENCE. 

Where  the  libel  charged  the  plaintiff  with  acts  of  barbarity  to  a 
horse,  and  that  one  of  its  eyes  was  literally  knocked  out,  and  that 
the  plaintiff  had  ordered  a  person  who  had  the  care  of  it  not  to  let 

any  person  see  it ;  and  issue  was  taken,  on  a  general 
[  '483  ]     plea  that  the  statement  was  true,  and  the  *jury  negatived 

the  fact  of  knocking  out  the  eye,  but  found  for  the  de- 
fendant as  to  the  rest ;  the  court  held  that  the  plaintiff  was  entitled 
to  the  verdict  (^  ). 

But  it  is  sufficient  if  the  substance  of  the  libellous  charge  be  jus- 
tified. 

The  supposed  libel  (Jc)  alleged  that  a  serious  misunderstanding 
had  taken  place  among  the  independent  dissenters  of  M.  and  their 
pastor,  in  consequence  of  some  personal  invectives  thrown  from  the 
pulpit  by  the  latter,  and  that  the  matter  was  to  be  taken  up  seri- 
ously. The  defendant  in  his  plea  alleged  that  the  plaintiff,  whilst 
officiating  as  minister,  published  from  a  part  of  the  chapel,  in  the 
presence  of  his  congregation,  of  and  concerning  one  M.  F.  the 
teacher  of  a  Sunday  school,  the  scandalous  words  following :  "  I 
have  something  to  say  whieh  I  have  thought  of  saying  for  some  time, 
namely,  the  improper  conduct  of  one  of  the  female  teachers  :  her 
name  is  Miss  Fair  ;  her  conduct  is  a  bad  example  and  disgrace  to 
the  school ;  and  if  any  of  the  children  dare  to  ask  her  to  go  home, 
she  shall  be  turned  out  of  the  school  and  never  enter  it  again :  Miss 

Fair  does  more  harm  than  good,  and  thereby  gave  great 
[  *484  ]     offence  to  divers  of  the  dissenters,  to  wit  one — *and  one 

— and  occasioned  a  serious  misunderstanding  amongst 
the  dissenters."  After  a  verdict  for  the  defendant,  the  court  held 
that  the  plea  was  an  answer  to  the  declaration,  although  the  libel 
alleged  a  misunderstanding  to  have  taken  place  between  the  pastor 
and  his  congregation,  whilst  the  justification  alleged  the  misunder- 
standing to  have  taken  place  among  the  congregation  only. 

Care  should  be  taken  to  apply  the  justification  where  the  matter 
of  justification  admits  of  it,  to  the  whole  of  the  imputation  contained 
in  the  declaration.  If  any  part  be  left  uncovered,  the  plaintiff  will, 
on  proof  of  the  words  or  libel  stated  (or  without  proof,  if  the  gene- 

(>  )  Weaver  v.  Loyd,  2  B.  &  C  678.     (k)  Edwards  v.  Bell,  1  Bing.  403. 


SPECIAL  PLEA.  484 

ral  issue  be  not  pleaded),  be  entitled  to  damages  in  respect  of  that 
part  of  the  charge  to  which  the  justificatioa  is  not  pleaded,  even  al- 
though sach  justijfication  might  have  been  pleaded  to  the  whole 
charge.  The  plaintiff  declared  for  these  words  {inter  alia),  he 
(meaning  the  plaintiff,)  has  robbed  me  to  a  serious  amount ;  the  de- 
fendant pleaded  the  general  issue ;  and  as  to  the  words,  "  He  has 
robbed  me,"  pleaded  that  the  plaintiff  had  on  such  a  day,  robbed 
him  of  a  loaf  of  the  value  of  three  pence ;  the  plaintiff  proved  the 
words  as  laid  ;  the  jury  found  the  justification  as  pleaded,  but  were 
directed  by  the  learned  judge  who  tried  the  cause,  to  give  some 
damages  in  respect  of  the  words  which  were  not  justified  ; 
and  they  found  a  verdict  *for  the  plaintiff,  with  forty  shil-  [  *485  ] 
lings  damages.  The  court  (Z),  afterwards  discharged  a 
rule  nisi,  which  had  been  obtained  for  entering  judgment  for  the 
defendant,  non  obstante  veredicto.  It  would  be  proper,  in  such  a 
case,  to  plead  the  justification  to  the  whole  of  the  words,  and  to 
aver  that  the  plaintiff  had  robbed  the  defendant  to  a  serious  amount, 
alleging  the  robbery  according  to  the  facts  ;  this  would  raise  the 
question,  of  fact,  as  it  seems  rather  than  of  law,  whether,  as  alleged, 
the  robbery  was  to  a  serious  amount. 

Where  the  defendant  pleads  in  justification,  that  the  alleged  libel 
is  a  fair  report  of  a  judicial  proceeding,  he  ought  to  shew  in  his  plea 
that  he  has  given  a  true  and  accurate  report  of  the  proceeding. 

And  it  is  not  sufficient  to  allege  that  the  alleged  libel  is  in  sub- 
stance a  true  and  accurate  report.  For  the  substance  is  nothin"- 
more  than  the  inference  which  the  publisher  of  the  libel  has  drawn 
from  what  passed  at  the  trial  Qn'),  it  ought  to  be  shewn  that  the  re- 
port is  a  true  and  accurate  report,  or  at  least  that  na  necessary 
matter  has  been  omitted,  in  order  that  the  court  may,  on 
•demurrer,  be  able  to  decide  whether  it  was  lawful  to  [  *486  ] 
publish  that  report  («). 

(Z)  Bayley  and  Holroyd,  Js.  in  the  C.  P.  Lancaster. 

(m)  Flint  r.  Pike,  4  B.  &  C.  473. 

in)  Se3  the  observations  of  Lillledale,  J.  in  Flint  v.  Pike,  4  B.  &  C.  473.  In 
the  case  of  Duncan  v.  Thwaites,  4  B.  &  A.  612,  Abbott,  C.  J.  said,  "  If  a  party 
is  to  be  allowed  to  publish  what  passes  in  a  court  of  justice,  he  must  publish 
the  whole  case,  and  not  merely  state  the  conclusion  which  he  himself  draws 
from  the  evidence 


486  CIVIL  REMEDY— DEFENCE. 

Besides,  the  plea  would  neither  deny  that  the  libel  was  published 
with  the  maUcious  motives  alleged  in  the  declaration,  nor  would  it 
shew  to  the  court  that  it  was  necessary  that  the  public  should  be 
made  acquainted  with  the  matter  stated  in  the  alleged  libel.  The 
plaintiff  declared  on  a  libel  which  professed  to  give  a  short  summary 
of  a  trial  of  an  action,  and  after  that  summary,  to  give  an  outline 
of  the  speech  of  the  counsel  for  the  defendant  in  that  cause  ;  and 
the  libel  set  out  part  of  a  speech,  containing  severe  reflections  on 
the  conduct  of  the  plaintiff,  the  attorney  for  the  plaintiff  in  that 
cause ;  the  defendant  pleaded  that  the  alleged  libel  was,  in  sub- 
stance, a  true  report  of  the  trial.  But  the  court,  upon  a  general 
demurrer,  gave  judgment  for  the  plaintiff  (o). 

So  again,  where  the  plaintiff  declared  on  a  libel  in  a  public  news- 
paper, which  purported  to  contain  a  true  account  of  the  speech  of  a 
counsel,  upon  an  indictment  for  a  conspiracy  ;  the  re- 
[  *48T  ]  port,  *after  setting  out  the  speech,  added,  "  the  first  wit- 
ness called  was  R.  P.  who  proved  all  that  had  been  stated 
by  the  counsel  for  the  prosecution  ;  and  then  stated,  that  in  conse- 
quence of  another  witness  being  unable  to  prove  a  deputation  from 
the  under  sheriff,  the  jury,  under  the  direction  of  the  court,  were 
obliged  to  give  a  verdict  of  acquittal.  The  defendant  pleaded  (inter 
olid)  that,  at  the  trial  of  the  indictment,  the  counsel  for  the  pros- 
ecution made  the  speech  set  out  in  the  supposed  libel ;  and  that 
having  so  stated  the  facts,  the  said  R.  P.,  by  his  testimony,  proved 
all  that  had  been  so  stated  by  the  counsel  for  the  prosecution,  and 
then  alleged  the  inability  of  the  other  witness,  &c.,  and  the  conse- 
quent acquittal.  And,  upon  a  general  demurrer,  it  was  held  that  the 
plea  could  not  be  supported  :  the  publication,  to  be  justifiable,  ought 
to  have  sated  the  evidence,  in  order  that  those  who  read  the  report 
might  judge  for  themselves  ;  and  if  a  party  is  to  be  allowed  to  pub- 
lish what  passes  in  a  court  of  justice,  he  must  publish  the  whole 
case,  and  not  the  conclusion  which  he  himself  draws  from  the  evi- 
dence (jp)- 

Where  the  defendant  justifies  the  speaking  oT  the  words,  or  pub- 
Co)  Flint  V.  Pike,  4  B.  &  C.  473.        {p)  Lewis  v.  Walter,  4  B.  &  A.  605. 


SPECIAL  PLEA.  488 

lishing  the  alleged  libel  in  the  course  of  a  parliamentary 
or  judicial  proceeding,  he  *must  shew,  in  his  plea,  that     [  *488  ] 
he  has  been  guilty  of  no  publication,  which  the  nature 
of  the  proceedings  did  not  call  for,  or,  at  least,  care  must  be  taken 
that  no  publication,  stated  in  the  declaration,  is  left  unprotected  by 
the  matter  of  justification  pleaded.     The   defendant  (9)  had  ex- 
hibited his  bill  in  the  Star  Chamber,  alleging  that  the  plaintiff  ^Ya3 
a  procurer  of  murders  and  piracies ;  the  declaration  alleged  the  ex- 
hibiting of  the  bill,  and  that  the  said  defendant,  at  B.,  in  the  county 
of  Salop,  said,  that  the  said  bill  and  the  matters  contained  therein, 
were  true.     The  defendant,  in  his  plea,  confessed  the  exhibiting  of 
the  bill  in  the    Star  Chamber,  and  that  he,  in  the  said  court  at 
Westminster,  spoke  the  said  words  absque  hoc,  that  he  spoke  the 
words  in  the  county  of  Salop  before  or  after  the  day  mentioned  in 
the  declaration,  by  which  he  excluded  the  day  itself,  for  which  rea- 
son the  plea  was  held    to  be  insufficient.     But  judgment  for  the 
plaintiff  in  this  case  was  afterwards  reversed,  upon  writ  of  error  in 
the  Exchequer  Chamber,  because  the  defendant  had  asserted  in  the 
county  of  Salop  nothing  more  than  that  the  matters  contained  in  the 
bill  were  true,  without  specifying  the  contents  of  the  bill. 

■\Yhere  the  alleged  libel  was  contained  in  a  petition  to 
the  members  (r)  of  a  committee  of  the  *House  of  Com-  [  *489  ] 
mens,  the  plaintiff,  in  his  declaration,  alleged  generally 
that  the  defendant  had  published  the  libel  to  "  divers  subjects." 
The  defendant  justified  the  publication  to  divers  persons  being  mem- 
bers of  the  committee,  and  averred  it  to  be  the  same  publishing  of 
which  the  plaintiff  had  complained,  and  the  plea  was  held  sufficient. 
But  it  seems,  that  if  the  plaintiff,  in  his  declaration,  allege  a  publi- 
cation to  divers  people  by'  name,  if  the  defendant  justify  the  publi- 
cation to  some  of  them  by  name,  he  must  traverse  a  publication  to 

the  rest. 

And  the  reason  of  the  distinction  is,  that  in  the  former  case,  where 
a  general  publication  to  divers  subjects  is  alleged,  the  plea  that  he 
published  to  divers  subjects,  being  members  of  the  eommittee,is  con- 
sistent with  the  declaration,  and  therefore  with  the  averment  that 

(q)  Buckley  v.  Wood,  4  Co.  15.  (r)  Lake  v.  King,  I  Saund.  120. 


489  CIVIL  REMEDY—DEFENCE. 

the  publication  is  the  same.  But  if  the  plaintiff  declare  of  a  pub- 
lication to  A.  B.  C.  and  D.,  the  defendant,  in  justifying  a  publica- 
tion to  A.  and  B.,  cannot  aver  it  to  be  the  same  pubhcation  with 
that  complained  of  but  should  traverse  the  publication  to  C.  and 

D.  (s). 

Where  part  of  a  publication  consists  of  a  report  of  judicial  proceed- 
ings and  the  rest  of  comment,  since  the  separation  is  nec- 
[  *490  ]     essary  for  the  *purpose  of  defence,  the  defendant  ought  («) 
to  take  upon  him: elf  the  burthen  of  making  it,  in  order 
that  the  court  may  see   what  parts  he  means  to  justify.     And  if  he 
does  not,  the  court  will  not  allow  him  to  amend  his  plea. 

A  plea  of  justification,  however,  may  be  good,  with  a  general  ref- 
erence to  certain  parts  of  the  libel  set  forth  in  the  declaration,  if  the 
court  can  see  with  certainty  what  parts  are  referred  to  ;  as  if  the 
reference  be  to  so  much  of  the  libel  as  imputes  to  the  plaintiff  such 
a  crime  as  perjury,  that  would  be  sufficient  without  repeating  all  those 
parts  again,  which  would  lead  to  prolixity  of  pleading  and  ought  to 
be  avoided  (ii). 

The  defendant  may,  under  the  statute  (a:),  by  leave  of  the  court, 
join  a  general  plea  of  not  guilty  to  the  whole  declaration,  with  a  plea 
of  special  justification  to  the  whole  or  part  (?/).  Thus  he  may  jus- 
tify so  much  as  imputes  to  the  plaintiff  the  commission  of  a  specific 
crime,  as  perjury  (2).     And  he  may  plead  not  guilty,  as  to  part  of 

the  words,  and  justify  as  to  the  residue  (a). 
[  *491  ]  *When  the  words,  as  stated  on  the  record,  appear  to 
be  demurrable,  it  may  be  useful  to  recollect  the  rule  which 
Sir  E.  Coke  (6)  termed  "  an  excellent  point  of  learning  in  actions 
fur  slander,"  namely,  "  observe  the  occasion  and  cause  of  speaking 
them,  and  how  it  may  be  pleaded  in  the  defendant's  excuse.  When 
the  matter  in  fact  will  clearly  serve  for  your  client,  although  your 
opinion  is,  that  the  plaintiff  has  no  cause  of  action,  yet  take  heed 
you  do  not  hazard  the  matter   on  a  demurrer,  in  which,  upon   the 

(s)  See  1  Wil).  Saund.  133,  n.  4,  and  22,  n.  2. 

{i)  7  East.  493.  (w)  Per  Le  Blanc,  J.  7  East.  507. 

(3-)  4  Ann,  c.  16.  (y)  Sae  Tidd  603.  4  edit. 

(z)  Styles  V.  Nokes,  7  East  493.  (a)  Rich  v.  Holt.  Cro.  J.  267- 

(b)  4th  Rep. 


SPECIAL  PLEA.  491 

pleading  and  otherwise,  more  perhaps  •will  arise  than  you  thought 
of ;  but  first  take  advantage  of  matters  of  fact,  and  leave  matters 
of  law,  which  always  arise  upon  the  matters  of  fact  ad  ultimum, 
and  never  at  first  demur  in  law,  when,  after  the  trial  of  the  matters 
in  fact,  the  matter  in  law  will  be  saved  to  you." 


Vol.  I.  63 


CHAPTER    XYII. 


Op  the  Replication. 


[  *492  ]  *It  seldom  happens  that  any  thing  can  be  replied  to 
the  defendant's  special  plea,  expect  the  general  replica- 
tion of  de  injuria  propria,  &c.  which  puts  the  whole  of  the  de- 
fendant's plea  in  issue  (a). 

In  some  instances,  however,  a  special  replication  becomes  nec- 
essary. As,  where  the  original  slander  imputes  to  the  plaintiff 
the  commission  of  a  specific  crime,  and  the  defendant  pleads  in 
justification  that  the  plaintiff  was  really  guilty,  the  plaintiff  may 
reply,  that,  after  his  commission  of  the  crime,  and  before  the  speak- 
ing of  the  words,  he  was  pardoned  (6). 

And  it  has  been  said,  that  in  such  case  it  makes  no  difference 
whether  the  pardon  be  a  special  one,  of  which  the  defendant  was 
ignorant,  or  a  general  one,  since  a  man  who  takes  upon  himself  to 
spread  slander,  does  it  at  his  peril ;  but  that  if  a  man  who  had 
committed  felony,  secretly  procure  a  pardon,  and  anoth- 
[  *493  ]  er,  not  knowing  of  *the  pardon,  cause  him  to  be  appre- 
hended for  felony,  he  would  be  justified,  because  what 
he  did  was  for  the  advancement  of  justice. 

But  where  the  pardon  is  general,  containing  clauses  of  exception, 
it  seems  the  plaintiff  should  aver  that  his  case  does  not  fall  within 
any  of  the  exceptions  (c). 

(a)  1  Saund.  244,  n.  7.  (b)  Cuddington  v.  Wilkins,  Hob.  81. 

(c)  Hob.  67. 


SPECIAL  PLEA.  493 

And  even  after  a  pardon,  if  the  defendant  merely  say  that  the 
plaintiff  was  a  thief,  the  pardon  (cT)  will  not  be  available. 

Where  the  plaintiff  has  stated  the  publication,  generally,  to  have 
been  made  to  divers  persons,  not  naming  them,  and  the  defendant 
justifies  the  publication  to  particular  persons,  as  to  the  members  of 
a  committee  of  the  House  of  Commons,  if  the  plaintiff  mean  to 
insist  upon  a  publication  to  any  others,  he  should  state  such  publi- 
cation by  way  of  new  assignment  (e). 

(e)  See  1  Saund.  133,  and  Chitty,on  Pleading  603. 
(rf)  Hob.  82. 


A 

TREATISE 


ON  THE 


LAW    OF    SLANDER 


AND 


LIBEL, 

AND   INCIDENTALLY   OF 

MALICIOUS  PROSECUTIONS. 


Nescit  vox  missa  reverti. 


By  THOMAS  STARKIE,  Esq. 

OP  LINCOLN'S   INN,  BAKKISTEB  AT  LAW. 


-<  <•'—  >- 


FROM  THE  SECOND  ENGLISH  EDITION  OF   1830, 

WITH   NOTES   AND   EEFBKENCES   TO   AMEKIOAN   CASES   AND   TO    ENGLISH    DE- 

CISIONS   SINCE   1830. 


BY    JOHN    L.    WENDELL, 

COUNSELLOR  AT   LAW. 

VOL.  II. 


WEST  BROOKFIELD,  MASS: 
STEAM  POWER  PRESS  OF  O.  S.  COOKE  &  CO. 

1852. 


Entered,  according  to  act  of  Congress,  in  the  year  one  thonsand  eight  hundred  and 

forty-three, 

BY  JOHN  L.  WENDELL, 
In  the  Clerk's  Office  of  the  District  Conrt  of  the  Northern  District  of  New-York. 


CONTENTS 


OF 


VOLUME  11. 


CHAPTER  I. 

OF  THE  EVIDENCE  FOR  THE  PLAESITIFF, 1 

CHAPTER  II. 

OF  THE  EVIDENCE  FOR  THE  DEFENDANT,  ....  84 

CHAPTER  III. 

PROCEEDINGS  AFTER  VERDICT, 105 

CHAPTER  IV. 

OF  COSTS, lis 

CHAPTER  V. 

OF  THE  WRIT  OF  PROHIBITION, 117 

CHAPTER  VL 

PUBLICATIONS  AGAINST  RELIGION, 129 

CHAPTER  VII. 

PUBLICATIONS  AGAINST  MORALITY, 155 

CHAPTER  VIII. 

PUBLICATIONS  AGAINST  THE  CONSTITUTION,  &c.  .        .        160 

CHAPTER  IX. 

PUBLICATIONS  EXCITING  TO  AN  ILLEGAL  ACT,        ...        207 


iv  CONTENTS. 

CHAPTER  X. 

PUBLICATIONS  AGAINST  SOUND  POLICY  AND  CONVENIENCE,    216 

CHAPTER  XL 

OF  THE  PUBLICATION  OF  THE  LIBEL,  .,        ...        225 

CHAPTER  XII. 

OF  THE  DEFENDANT'S  INTENTION  AND  COLLATERAL  CIR- 
CUMSTANCES,         240 

CHAPTER  Xm. 

PROCEEDINGS  AGAINST  OFFENDERS,  259 

CHAPTER  XIV. 

PROCEEDING  BY   INFORMATION;    INDICTMENT;  SEIZURE 
OF  PAPERS,  &c.  272 

CHAPTER  XV. 

EVIDENCE  IN  CRIMINAL  PROCEEDINGS  FOR  LIBEL,         •  309 

CHAPTER  XVI. 

OF  TRIAL  AND  VERDICT,  327 

CHAPTER  XVII. 

OF  PROCEEDINGS  AFTER  VERDICT, 360 

PRECEDENTS, 373 


CnAPTER  I. 


Of  the  Evidence. 


The  natural  order  of  the  evidence,  in  an  action  for  slander,    [  *1  ] 
on  the  part  of  the  plaintiff,  where  the  general  issue  has  been 

pleaded,  is 

1st.  Of  special  character  and  extrinsic  facts,  when  thej  are  es- 
sential to  the  action. 

2dly.  Of  the  act  of  speaking  the  words  or  publishing  the  hbel. 

3dly.  Of  the  truth  of  the  colloquium  and  innuendos. 

4thly.  Of  the  defendant's  malice  and  intention,  where  malice  in 
fact  is  material. 

5thly.  Of  the  damage.  .    . 

First,  as  to  the  proof  of  special  character,  and  other  extrmsic 
facts. 

Where  the  special  character  is  essential  to  the  action,  it  is  alleged 

either  generally  or  particularly. 

When  it  is  generally  alleged,  it  is  usually  sufficient  to  prove,  by 
general  evidence,  that  the  plaintiff  is  in  the  actual  possession  of  the 
office  or  situation  in  which  he  has  been  defamed,  without 
*strict  proof  of  any  legal  inception  or  investment.         ^         [  *2  J 

For  in  an  action  against  a  mere  wrongful  invader  or  dis-  ^ 
turber,  a  party  is  not  to  be  put  to  the  hazard  or  peril  of  giving  de- 
tailed and  conclusive  proof  of  his  title  ;  and  it  is  to  be  presumed,  till 
the  contrary  be  shown,  that  be  acted  legally. 

And,  therefore,  where  a  plaintiff  avers  generally  that  he  filled 
any  particular  situation  or  office,  in  which  he  has  been  calumniated, 
or  that  he  exercised  any  particular  profession  or  business,  it  is  suffi- 
cient to  give  general  evidence  of  his  having  acted  in  that  office  or 

Vol.  II.  64 


2  CIVIL  REMEDY— EVIDENCE. 

situation,  or  of  his  having  exercised  that  particular  profession,  or 
carried  on  that  trade  or  business.  If  the  declaration  allege  that  the 
plaintiflf  was,at  the  time  of  the  alleged  injarj,  a  magistrate  or  peace 
officer  (/),  it  is  sufficient  to  show  that  he  previously  acted  as  such. 
If  it  allege  that  the  plaintiff  was  an  attorney  of  such  a  court,  it  is 
sufficient  to  show  that  he  was  before  and  at  the  time,  practising  as 

an  attorney  of  that  court  (^).  It  has  indeed  been  *doubted, 
[  *3  ]     whether,  under  an  allegation  that  the  plaintiff  was  at  the 

time  of  the  alleged  slander  a  physician,  it  was  necessary  to 
produce  a  diploma ;  and  the  judges  of  the  Court  of  Common  Pleas 
were  equally  divided  upon  this  question  (7i). 

(/)  Per  Buller,  J.  Berryman  v.  Wise,  4  T.  R.  366.  Gordon's  case,  Leach. 
581.    R.  V.  Shelly,  Leach,  581.  n. 

(g)  Beiryman  v.  Wise,  4  T.  R.  366.  Slarkie'on  Evidence,  part  iv.  372.  In 
the  case  of  Berryman  r.  Wise,  4  T.  R.  306,  the  plaintiff  averred  that  he  was 
an  attorney  of  the  Court  of  King's  Bench,  and  having  been  employed  in  a  par- 
ticular cause,  had  received  a  certain  sum  of  money,  which  the  defendant  charged 
him  with  swindling,  adding  a  threat,  that  he  would  move  the  court  to  have  him 
"  struck  off  the  roll  of  attornies."  Upon  the  trial  before  Thomson,  Baron,  at 
the  York  assizes,  the  plaintiff  proved  the  words,  and  his  having  been  employed 
as  an  attorney  in  that  and  others  suits.  It  was  objected  that  the  plaintiff  had 
not  proved  the  first  allegation,  in  his  declaration,  viz.  that  he  was  an  attorney  of 
the  Court  of  King's  Bench,  which  could  only  be  proved  by  his  admission,  or  by 
a  copy  of  the  roll  of  attornies ;  but  ihe  objection  was  overruled,  the  learned 
judge  reserving  the  point  Vt'ith  liberty  to  move  to  enter  a  nonsuit.  Upon  motion 
made  to  that  effect,  the  court  were  of  opinion,  that  the  evidence  was  sufficient, 
for  the  defendant's  threat  imputed  that  the  plaintiff  was  an  attorney.  And  Bul- 
ler, J.  said,  in  the  case  of  all  peace  officers,  justices  of  the  peace,  constables, 
&c.  it  is  sufficient  to  prove  that  they  acted  in  those  characters,  without  proving 
their  appointments,  and  that  even  in  case  of  murder.  Excise  and  custom-house 
officers,  indeed,  fall  under  a  different  consideration,  but  even  in  their  case,  evi- 
dence was  admitted,  both  in  civil  and  criminal  suits,  to  show  that  the  party  was 
a  reputed  officer  prior  to  the  11th  G.  I.  c.  10.  s.  12, 

(h)  Smith  V.  Taylor,  1  N.  R.  196.  In  the  previous  case  of  Pickford  v.  Gutch, 
Cor.  Buller,  J.  Dorchester  assizes,  1787,  the  action  was  brought  for  calling  the 
plaintiff  a  quack.  The  declaration  alleged  that  the  plaintiff  had  used  and  exer- 
cised the  profession,  &c.  of  a  physician,  &c.  To  prove  this,  a  person  who  was 
a  surgeon  and  apothecary  was  called,  who  would  have  proved  that  the  plaintiff 
for  several  years  had  prescribed,  &c.  as  a  physician,  and  that  the  witness  had 
acted  under  him.  But  Buller,  J.  was  of  opinion  that  the  evidence  was  insuffi- 
cient, and  ihat  it  was  necessary  to  produce  the  plaintiff's  diploma  ;  on  which  it 
"was  produced  in  court,  and  the  plaintiff  recovered. 


SPECIAL  CHARACTER.  4 

*The  declaration  stated,  that  the  plaintift",  at  the  time  of  speakin*^ 
the   Avords,  was   "  a  physician."     Upon   the    trial  of  the 
cause  before  Sir  J.  Mansfield,  C.  J.  it  was  proved  that  the     [  *-i  ] 
plaintiff  had  practised  for  some  years  as  a  physician  in  the 
town  of  Yarmouth ;  that  Dr.  Girdlestone,  who  was  also  a  physician 
at  Yarmouth,  and  of  longer  standing  than  the  plaintiff,  had  been  at- 
tending one  Richard  Helsden  as  a  patient,  and  that  the  defendant 
was  employed  as  his  apothecary.     That  Dr.  Girdlestone  being  ob- 
liged to  leave  Yarmouth  for  a  day,  the  plaintiff  was  sent  for,  at  the 
request  of  Helsden's  wife,  and  prescribed  for  him ;  the  prescription 
was  made  up  by  the  defendant.     On  Dr.  Girdlestone's  return,  the 
plaintiff  requested  that  he  might  be  sent  for ;  Dr.  G.  refused,  and 
the  defendant  then,  with  reference  to  the  transaction,  said,  "  I  and 
Dr.  G.  both  thought  that  Helsden  was  doing  well,  till  Mrs.  Helsden 
called  in  Dr.  Smith,  who  has  upset  all  that  we  have  done,  and  die  he 
(Helsden)  must."     Moises  v.  Thornton  was  cited,  on  the  part  of 
the  defendant,  to  prove  it  to  be  necessary  for  the  plaintiff 
to  show  *that  he  was  a  regular  physician.     His  lordship     [  *5  ] 
was  of  opinion,  that  the  case  was  irrelevant,  and  the  plain- 
tiff  obtained  a  verdict  for  .£100.     The  case  was  afterwards  argued 
on  a  rule  to  show  cause  why  the  verdict  should  not  be  set  aside, 
and  a  new  trial  had  ;  and  the  learned  judges  not  being  agreed,  de- 
livered their  opinions  seriatim,  Sir  J.  Mansfield,  C.  J.  and  Heath, 
J.  agreeing  that  the  plaintiff  was  entitled  to  recover  without  further 
proof;  and  Rooke  and  Chambre,  Justices,  conceiving  it  to  be  re- 
quisite for  the  plaintiff  to  prove  that  he  was  lawfully  authorized  to 
practice.     As  the  court  were  equally  divided,  the  plaintiff  of  course 
retained  his  verdict. 

The  argument  for  the  necessity  of  proving  a  regular  diploma  in 
that  case,  seems  to  resolve  itself  principally  into  the  question,  whe- 
ther, where  a  statute  prohibits  the  entering  in  a  particular  situation 
or  office,  without  some  particular  previous  qualification,  it  be  neces- 
sary in  an  action  by  a  party  aggrieved,  in  that  character,  to  prove 
such  quahfication ;  for  no  precise  form  is  essential  to  the  constituting 
a  physician  (J)  ;  and  physicians  were  contemplated  and  recognized 

(»)  See  5  Com.  Dig.  tit.  Physician. 


6  CIVIL  REMEDY— EVIDENCE. 

by  the  law  as  such,  before  the  passing  of  the  statute,  which  made 
particular  qualifications  *essential  to  the  legal  exercise  of 
[  '6  ]  their  profession.  On  general  legal  principles,  it  seems, 
that  no  such  proof  is  essential ;  for  in  general,  it  is  to  be 
presumed,  that  a  party  ^Yho  acts  in  a  particular  situation,  acts  legal- 
ly in  that  situation,  and  that  he  has  conformed  to  and  not  violated 
the  law  in  so  acting.  This  presumption  is  made  in  favor  of  inno- 
cence, even  where  the  plaintiff  seeks  to  enforce  a  civil  contract, 
which  would  not  be  valid  without  such  conformity  (Jc').  A  fortiori 
the  presumption  ought  to  be  made  against  a  mere  wrong-doer  (Z). 

It  has  been  expressly  decided,  that  an  attorney  in  an  action  for  a 
libel  upon  him,  in  his  professional  character  is  not  bound  to  prove 
that  he  has  duly  taken  out  his  certificate  according  to  the  statute 

0»)  [1]. 

[  *7  ]  *In  the  subsequent  case  of  Pearce  v.    Whale  (w),  the 

court  held  that  it  was  not  sufficient  for  the  defendant  to 

(k)  As  in  an  action  on  an  attorney's  bill,  see  Starkie  on  Evidence,  lit.  Attor- 
ney. By  the  express  provisions  of  the  statute  55  G.  3,  c  194,  s.  21,  an  apoth- 
ecary cannot  recover  for  business  done  without  proof  of  qualification,  but  that  is 
by  the  express  provision  of  the  statute. 

(/)  See  Starkie  on  Evidence,  iv.  1249. 

(m)  Jones  v.  Stevens,  Exch.  Trin.  T.  1822,  11  Price  235.  It  was  held,  in  that 
case,  that  an  attorney  might  recover  for  a  libel  upon  him  in  his  professional 
character,  even  although  evidence  was  given  on  the  part  of  the  defendant,  that 
no  certificate  had  been  taken  out  by  the  plaintitf,  from  Nov.  1813  to  Nov.  1814  ; 
or  from  Nov.  1821  to  Feb.  1822,  when  the  last  certificate  was  obtained,  and  that 
the  plaintiff  had,  during  those  periods,  practiced  as  an  attorney  ;  notwithstand- 
ing this  evidence,  the  court  held  that  although  the  plaintiff  might  be  disabled  by 
the  Stat.  37  G.  3,  c.  90,  from  maintaining  any  action  for  fees,  yet  that  he  did 
not,  by  the  omission,  entirely  lose  his  character  of  an  attorney,  and  was  not  to  be 
subjected,  in  addition  to  the  penalty  and  disability  imposed  by  the  statute,  to  be 
aspersed  and  reviled  in  that  character.  But  note,  that  no  negative  evidence  was 
given  to  show  that  the  plaintiff  had  not  been  re-adraitted.  See  Pearce  v.  Whale 
5  B.  &  C.  38.  ' 

(n)  5B.  &  C.  38. 

[1]  In  an  action  by  a  physician  for  words  imputing  want  of  skill,  it  was  held 
that  proof  that  he  had  practiced  in  his  profession  with  reputation  for  several 
years,  was  sufficient  evidence  of  his  being  a  physician.  Digest  of  South  Caro- 
lina Reports,  p.  163.  See  also  McPherson  v.  Cheadell,  24  Wendell,  24,  and 
Finch  V.  Gridley's  exrs.  25  Id.  469. 


SPECIAL  CHARACTER.  7 

show  that  the  plaintiff,  who  sued  as  an  attorney  for  fees,  had  neg- 
lected to  take  out  his  certificate  in  previous  years,  without  also  giv- 
ing evidence  to  negative  his  re-admission  as  an  attorney. 

But  although  the  allegation  of  character  be  general,  yet  if  there 
be  reason  to  apprehend  that  the  defendant  means  to  dispute  the 
plaintiff's  title  to  the  office,  situation,  or  other  special  character  to 
which  the  slander  or  libel  relate,  it  would  be  prudent  to  be  prepared 
with  the  best  evidence  to  establish  the  fact.  For  although  the  proof 
of  the  negative  might  lie,  in  the  first  instance,  on  the  defendant,  yet 
such  evidence  might  be  offered  as  would  suffice  to  estab- 
lish the  negative  in  the  *absence  of  affirmative  proof,  the  [  *8  ] 
more  especially  if  the  plaintiff  was  apprized  of  the  defend- 
ant's intention  to  dispute  the  plaintiff's  title  to  the  special  character. 

But  where  the  plaintiff  himself  specifies  the  particular  mode  in 
which  he  was  invested  with  the  particular  character  in  which  he  has 
been  injured,  he  must,  it  seems,  prove  such  a  descriptive  allegation, 
with  its  circumstances  although  a  more  general  allegation  would 
have  been  sufficient.  For  though  a  totally  irrelevant  allegation  may 
be  rejected  as  surplusage,  one  which  is  material  to  the  cause  of  ac- 
tion, and  which  is  descriptive  of  the  legal  injury,  must  be  proved  as 
laid  (jj*). 

(p)  The  rule  in  principle  seems  to  be  this,  that  if  the  plaintiff,  instead  of 
averring  his  special  character  generally,  merely  alleges  the  mode  of  appoint- 
ment or  investment,  he  must  prove  the  fact,  for,  being  material  to  the  right  of 
action,  it  cannot  be  rejected  ;  if  it  were  rejected,  no  sufficient  cause  of  actioa 
would  be  alleged.  But  where  the  plaintiff  alleges  his  appointment  cumulative- 
ly, as  if  he  allege  that  he  is  an  attorney,  and  has  been  duly  admitted,  &c.  or  that 
he  is  a  physician,  and  has  taken  his  degree,  &c.  it  may  well  be  doubted  wheth- 
er, in  principle,  strict  proof  of  his  admission  or  diploma  be  necessary.  Forsuch  al- 
legations may  be  regarded  as  cumulative  ratlier  than  descriptive,  and  there  seems 
to  be  no  reason  why,  in  such  a  case,  the  legal  investment,  by  admission  or  other- 
wise, should  not  be  presumed  from  evidence  that  the  party  has  acted  in  the  par- 
ticular character.  If  it  is  to  be  presumed,  from  such  evidence,  that  the  party  is 
an  attorney,  why  is  it  not  also  to  be  presumed  that  he  has  been  admitted  an  at- 
torney. The  latter  presumption  indeed  necessarily  involves  the  former  ;  a  pre- 
sumption of  a  particular  fact  necessarily  includes  the  presumption  of  everything 
which  is  essential  to  that  fact,  and  without  which  it  could  not  have  been. 


9  CIVIL  REMEDY— EVIDENCE. 

[  *9  ]  *The   defendant  (5)  said  of  the   plaintiff,  "  He  is  a 

quack,  and  if  he  shews  jou  a'  diploma,  it  is  a  forgery." 
The  declaration  averred  that  the  plaintiff  "was  a  physician,  and 
had  regularly  taken  his  degree  of  doctor  of  physic." 

In  support  of  this  averment,  he  produced  a  diploma,  purporting, 
on  the  face  of  it,  to  have  been  granted  by  the  University  of  St. 
Andrew 's,  in  Scotland,  and  to  have  the  University  seal  appendant 
to  it.  To  authenticate  this,  a  witness  was  offered,  to  prove  that  the 
rector  and  professors  of  the  University  of  St.  Andrew's  had  ac- 
knowledged, in  his  presence,  their  signatures,  subscribed  to  the 
diploma.  The  same  witness  was  ready  to  prove  a  certificate,  by  the 
master  and  professors,  of  the  due  taking  of  the  degree,  and  an  ac- 
knowledgment by  the  seal-keeper  of  the  University,  that  the  seal 
appendant  to  the  diploma  was  the  seal  of  the  University.  Lord 
Kenyon,  C.  J.  deeming  this  evidence  to  be  insufficient, 
[  *10  ]  the  plaintiff  was  nonsuited.  A  motion  for  a  new  *trial 
was  afterwards  refused,  on  the  ground,  that  the  plaintiff 
having  averred  that  he  had  duly  taken  the  degree  of  doctor  of 
physic,  he  was  bound  to  prove  it ;  and  it  was  observed,  by  Lawrence, 
J.  "  even  if  it  be  not  necessary  in  general,  for  the  party  to  show 
that  he  has  taken  his  degree,  in  this  case  it  is  necessary  on  account 
of  the  plaintiff's  allegation." 

Lord  Kenyon,  C.  J.  observed,  that  the  best  evidence  to  prove  the 
taking  of  a  degree  is  by  the  production  of  the  books  containing  the 
act  of  the  corporation  by  which  the  degree  is  conferred. 

But,  in  general,  if  the  slander  or  libel  assume  that  the  plaintiff 
possesses  the  character,  or  fills  the  situation  or  office  in  which  he  is 
defamed,  or  assumes  the  truth  of  facts  to  which  the  slander  or  libel 
relates,  and  which  are  averred  in  the  declaration,  it  operates  by  wav 
of  admission,  and  no  farther  evidence  of  the  fact  is  necessary. 
Thus  where  the  plaintiff,  being  an  attorney,  brought  his  action  for 
words,  used  by  the  defendant,  by  which  he  threatened  that  he  would 
have  the  plaintiff  struck  off  the  roll  of  attornies,  it  was  held  that 

(q)  Dr.  Moises  v.  Dr.  Thornton,  8  T.  R.  303, 


SPECIAL  CHARACTER.  10 

proof  of  the  plaintiflf's  being  an  attorney  -was  unnecessary,  for  the 
words  imported  the  fact  (r)  [1]. 

*The  plaintiff  alleged  that  he  had  been  appointed  by  [  *11  ] 
certain  persons,  excercising  the  powers  of  government, 
in  a  certain  republic  or  state  in  parts  beyond  seas,  to  wit,  in  the 
repubhc  or  state  of  Chili,  in  South  America,  to  the  office  or  station 
of  envoy  extraordinary  and  minister  plenipotentiary  to  and  at  the 
courts  of  Europe,  &c. 

It  was  objected,  at  the  trial,  that  the  plaintiff  had  not  proved 
that  there  was  such  a  state  as  Chili,  but  the  defendant  having 
asserted,  in  the  alleged  libel  that  the  plaintiff  had  colluded  with  J. 
H.,  fraudulently  to  obtain  money  in  the  matter  of  a  loan  for  the 
republic  or  state  of  Chili,  &c.  it  was  held  to  be  sufficient  proof  of 
the  existence  of  such  a  state  (s). 

Where  a  libel  alleged  that  certain  acts  of  outrage  had  been  com- 
mitted, it  was  held  that  this  was  evidence  to  support  an  averment 
of  the  fact,  in  the  introductory  part  of  the  record  (f). 

*In  the  next  place  it  is  necessary  to  prove  all  those     [  *12  ] 
prefatory  allegations  of   facts,  in  relation  to  which   the 
illegality  qf  the  words  or  libel  consists. 

Any  material  variance  in  the  proof  of  such  averments  will,  it 
has  been  seen  (w),  be  fatal,  although  it  is  otherwise  where  the  alle- 

(r)  Berryman  v.  Wise,  4  T.  R.  366  ;  and  see  Smith  v.  Taylor,  1  N.  R.  196. 
Where  the  plaintiff  alleged,  generally,  that  he  was  an  attorney,  and  the  words 
were,  "  He  is  a  pettifogging,  blood-sucking  attorney;"  it  was  ruled  that  no 
extrinsic  evidence  to  prove  the  plaintiff  to  be  an  attorney  was  necessary.  Arm- 
strong V.  Jordan,  Cor.  HuUock,  B.  Carlisle  Sum.  Ass.  1826. 

(s)  Yrissair  v.  Clement,  3  Bing.  432. 

(0  See  the  observations  of  Bayley,  J.  in  4  M.  &  S.  548 ;  and  note,  that 
though  the  information  alleged  that  outrages  had  been  committed  in  and  in  the 
neighbourhood  of  Nottingham,  it  was  held  that  the  allegation  was  divisible, 
and  that  it  was  not  necessary  to  prove  that  outrages  had  been  committed  in  both 
places. — lb. 

(ti)  Supra  vol.  I,  405. 

[1]  So  where  the  defendant  in  imputing  a  crime  lo  the  plaintiff,  spoke  of 
him  as  The  Reverend  A.  B.,  it  was  held  that  the  words  used  were  equivalent 
to  an  admission,  that  the  plaintiff  was  a  Clergyman^  Cummen  v.  Smith,  2 
Serg.  and  Rawle  440. 


12  CIVIL  REMEDY— EVIDENCE. 

gation  of  the  extrinsic  fact  is  purely  immaterial  (x),  or  where  the 
prefatory  subject  matter  is  in  its  nature  divisible,  and  so  much  is 
proved  as  Tvould,  had  it  been  alleged  without  more,  have  been 
sufficient  (?/). 

2dly.  As  to  the  fact  of  publication.  Where  the  action  is  for 
words  spoken,  evidence  of  the  speaking  before  any  third  person 
will  be  sufficient,  though  the  declaration  allege  them  to  have  been 
spoken  before  A.  B.  and  others  (2).  And  where  the  words  are  in 
themselves  actionable,  it  is  sufficient  to  prove  some  of  them  which 
are  actionable,  provided  they  be  proved  as  laid  (a). 

If  the  words  be  spoken,  or  libel  published,  in  a  foreign 
[  *13  ]     language,  or  in  characters  not  understood  *by  those  who 

hear  or  see  them,  there  is  no  publication,  since  there  is 
no  communication  prejudicial  to  the  plaintiff;  and  if  the  words  be 
spoken,  or  libel  addressed,  to  the  plaintiff  only,  without  further 
publication,  no  action  is  maintainable,  since  no  temporal  damage 
can  have  accrued  from  the  defendant's  act  (6),  but  a  publication 
to  the  prosecutor  only  would  be  sufficient  to  sustain  an  indictment 
on  the  ground  of  its  tendency  to  produce  a  breach  of  the  peace  (c). 
"Where  a  witness,  who  has  heard  scandalous  Avords  spoken,  has 
committed  them  immediately  to  writing,  he  may  afterwards  read  the 

paper  in  evidence,  if  he  swear  that  the  words  contained 
[  *14  ]       in  it  are  the  very  words  (d)  ;  and  if  the  words  have  *not 

{x)  Supra  ib.  406.  (y)  Supra  ib.  407.  (z)  B.  N.  P.  5. 

(a)  2  East.  434.  8  T.  R.   150,  supra  309. 

(h)  1  Will.  Saun.  132,  n.  2.  Phillips  u.  Janson,  2  Esp.  C.  226.  and  see 
Hkks's  case.  Hob.  215.     R.  v.  Wegener,  2  Starkie's  C.  245. 

(c)  But  where  a  libel,  reflecting  on  the  prosecutor  in  his  profession  as  a  solic- 
itor, was  sent  as  a  letter,  and  published  to  the  prosecutor  alone,  and  the  indict- 
ment alleged  that  it  was  published  with  intention  to  injure  the  prosecutor  in  his 
profession  as  a  solicitor,  it  was  held  (by  Abbott,  J.)  that  the  indictment  could 
not  be  supported,  and  that  it  should  have  been  alleged  to  have  been  published 
■with  intent  to  provoke  the  prosecutor  and  excite  him  to  commit  a  breach  of  the 
peace  ;  and  that  where  a  letter  containing  a  libel  is  sent  to  the  wife,  it  ought  to 
be  alleged  to  have  been  published  with  the  intent  to  disturb  the  domestic  har- 
mony of  the  parties.     R.  f.  Wegener,   2  Starkie's  C.  245. 

{d)  Per  Holt,  C.  J.  Sand  well  v.  Sandwell,  Holt.  R.  295. 


rUBLICATION.  14 

been  •written  immediately,  the  witness  may  refer  to  his  minutes  to 
refresh  his  memory  (e). 

In  case  of  libel,  before  any  evidence  can  be  ;;iven  of  its  contents, 
jnirnd  fade  evidence  must  be  given  of  a  publication  by  the  defend- 
ant. Evidence  of  a  publication  is  either  of  a  publication  (jenerally, 
or  of  a  publication  in  some  'particular  county  or  place,  and  it  is 
either  direct  or  indirect. 

To  support  a  civil  action  it  is  essential,  as  has  already  been  ob- 
served, to  prove  a  publication  of  the  libel  to  some  third  person  (/) 
[1].  But  where  the  defendant,  knowing  that  letters  addressed  to 
the  plaintiff  were  usually  opened  and  read  by  his  clerk,  wrote  a 
libellous  letter  and  directed  it  to  the  plaintiff  and  his  clerk  received 
and  read  it,  it  was  held  that  there  was  a  sufficient  publication  to  sup- 
port the  action  (^). 

The  publication  may  be  directly  proved,  hj  evidence  that  the 
defendant,  with  his  own  hand,  distributed  the  libel,  or  exposed  its 
contents,  or  painted  an  ignominious  sign  over  the  door 
*of  another,  or  took  part  in  a  procession  carrying  a  rep-  [  *15  ] 
resentation  of  the  plaintiff  in  effigy  for  the  purpose  of 
exposing  him  to  contempt  and  ridicule,  or  by  evidence  of  his 
maUciously  reading  or  singing  the  contents  of  the  libel  in  the  pre- 
sence of  others  ;  all  of  which  facts  are  direct  proof  of  the  averment 
that  the  defendant  published  the  alleged  libel  (Ji).  But  it  frequent- 
ly happens  that  no  direct  proof  can  be  given  of  the  defendant's 
agency  in  the  publication  of  the  libel,  and  resort  must  be  had  to  in- 
direct evidence,  in  order  to  connect  him  with  the  libel  and  fix  him 
with  its  publication.  The  most  usual  and  important  piece  of 
evidence  for  this  purpose  consists  in  proving  that  the  libel  published 

(e)  Holt's  R.  295. 

(/)  Supra  vol.  11.  13.  Where  a  libel,  contained  in  a  letter  folded,  but  not 
sealed,  was  delivered  to  a  third  person,  to  be  conveyed  to  the  plaintiff,  and  was 
so  conveyed  without  having  been  read  by  any  one,  it  was  held  that  no  action 
could  be  supported.     Cluiterbuck  v.  Chaffers,  2  Staikie's  C.  471. 

{g)  Delacroix  v.  Thevenot,  2  Starkie's  C  G3. 

{h)  5  Rep.  125.     9  Rep.  59,  b. 

[1]  So  where  a  sealed  letter  was  delivered  to  the  plaintiff  unopened,  it  was 
held  that  the  action  did  not  lie.     Lyle  v.  Clason,  1  Caines  581. 

Vol.  II.  65 


15  CIVIL  REMEDY— DEFENCE. 

is  in  the  hand-writing  of  the  defendant ;  -when  the  plaintiff  has 
proved  this,  he  has  made  out  such  a  'prima  facie  case  as  entitles  him 
to  have  the  contents  read  in  evidence  (Q. 

It  was  observed  by  a  great  authority  (Jc)^  that  "  When  a  libel  is 
produced  written  in  a  man's  own  hand,  he  is  taken  in  the  maintr, 
and  that  throws  the  proof  upon  him  ;  and  if  he  cannot  produce  the 
composer,  the  verdict  will  be  against  him." 

The  grounds  of  this  presumption  are  plain  and  reason- 
[  *16  ]  able.  *No  man  incurs  any  civil  responsibility  by  what 
he  thinks  or  even  writes,  unless  he  divulge  his  thoughts 
to  the  temporal  prejudice  of  another ;  but  it  seems  to  be  equally 
clear,  in  point  both  of  law  and  expediency,  that  if  he  write  what  is 
false,  and  the  calumny  become  public  to  the  detriment  of  its  object, 
he  is  just  as  responsible  for  the  effects  of  his  negligence  as  if  he  had 
been  the  voluntary  publisher  of  the  scandal ;  and  that,  if  a  man  write 
libels  for  his  own  perusal,  he  must  be  content  to  enjoy  the  satisfac- 
tion, diminished  by  the  risk  and  peril  of  an  accidental  publication 
and  its  consequences  (V). 

The  writing  a  libel  (iii)  does  not,  however,  in  any  case,  amount 
to  a  publication,  but  is  mere  evidence  from  which  it  may  be  in  fer- 
red.  What  amounts  to  a  publication  is  usuallya  question  of  fact 
falling  within  the   province  of  the  jury  to  decide  (»),  and  though 

\,i)  Burr.  2689. 

{k)  Per  Holt,  C.  J.  R.  v.  Beere,  Ld.  Ray.  417.  Mullet  v,  Hulton,  4  Eap. 
C.  248. 

(Z)  Supra  vol.  I.  225. 

{m)  Lamb's  case.  9  Rep.  59.     15  Vin.  Abr.  91.     Mod.  813. 

(n)  Baldwin  v.  Elphinstone,  Bl.  R.  1037 ;  that  is,  it  is  a  question  for  the 
jury,  in  doubiful  cases,  whether  there  has  in  fact  been  any  publication  of  the 
libel  to  a  third  person  ;  but,  where  the  facts  are  clear,  the  question  of  publica- 
tion is  one  of  law  for  the  decision  of  the  court.  If  (in  an  action  for  damages) 
the  facts  were  that  the  defendant  had  posted  up  a  libel  in  a  public  place,  but  had 
taken  it  down  again  before  any  one  had  read  it,  there  would  in  point  of  law  be 
no  publication  ;  but  if  it  were  doubtful  whether,  before  it  was  taken  down 
some  one  had  not  read  it,  that  would  be  a  question  of  fact  for  the  jury.  See 
Starkie  on  Evidence,  tit.  Law  and  Fact.  Delacroix  v,  Thevenot,  2  Starkie's 
C.  63.     Clatterbuck  v.  Chaffers,  1  Starkie's  C.  471, 


PUBLICATION.  1"^ 

proof  that  the  libel  is  in  the  *hand-writing  (o)  of  the     [   ^IT    ] 
party,  goes  far  in  fixing  him  with  the  publication,  he  is 

(0)  The  best  evidence  to  prove  the  hand-wiiting  in  question,  is  that  of  a  wit- 
ness who  actually  saw  the  party  write  it  ;  such  direct  evidence  can,  however, 
seldom  be  procured  ;  and,  in  general,  to  prove  the  hand-  wrhing  of  a  person  any 
witness  may  be  called  who  has  by  sufficient  means  acquired  such  a  knowledge 
of  the  general  character  of  the  hand-writing  of  the  party,  as  will  enable  him  to 
swear  to  his  belief  that  the  hand-writing  in  question  is  tlie  hand-writing  of  that 
person  •  B   N.  P-  236.    Lord  Ferrers  v.  Shirley,  Fitzg.  195, 

This'knowledge  of  the  general  character  of  the  party's  hand-writing,  may 
have  been  acquired  from  having  seen  him  write,  although  but  once,  Garrels  i;. 
Alexander,  4  Esp.  C.  37. ;  or,  if  the  witness  has  never  seen  mm  write,  it  is 
sufficient  if  he  has  obtained  a  knowledge  of  the  character  of  the  hand-writing 
from  a  correspondence  with  the  party  upon  matters  of  business,  or  from  any 
other  transactions  between  them,  as  from  having  paid  bills  of  exchange  accord- 
ing to  his  written  directions,  and  for  which  he  afterwards  accounted  And 
when  letters  are  sent  to  a  particular  person,  on  particular  b"^'»^^^' ^"^;;^"; 
swer  is  received  in  due  course,  a  fair  inference  arises  that  the  answer  was  sent 
by  the  person  whose  hand-writing  it  purports  to  be.  Per  Lord  Kenyon  Gary  .. 
Pitt  Peak.'s  L.  E  105.  For  when  letters  are  so  written  in  the  usual  and  or- 
dinary course  of  business,  it  is  reasonable  to  presume  that  they  were  really  wxit- 
ten  by  the  person  by  whom  they  purport  to  have  been  written  and  that  they 
have  not  been  fabricated  to  answer  a  particular  purpose.  In  such  case  itis  ob 
viously  essential,  that  the  identity  of  the  correspondent  whose  letters  have  been 
received,  with  the  party  whose  hand-writing  is  to  be  proved,  should  be  estab- 
lished, either  by  the  witness  who  received  the  letters,  or  by  other  reasonable 

PVlQGnCG 

In  the  case  of  Lord  Ferrers  ..  Shirley,  Fitzg.  195,  where  the  issue  was  upon 
the  execution  of  a  deed  by  Lord  Ferrers,  a  witness  was  called  to  prove  the  hand- 
writincT  ef  Cottington,  a  subscribing  witness,  who  was  dead  :  he  stated  that  his 
master  had  held  an  estate  under  the  late  Lord  Ferrers,  and  that  he  had  seen 
several  letters  appearing  to  have  been  written  by  Cottington  for  the  rent  of  the 
estate,  and  that  his  master  had  told  him  that  they  were  the  letters  of  Cottington, 
Earl  Ferrer's  steward.     The  court,  in  this  instance,  rejected  the  witness   be- 
cause  he  could  not  prove  the  identity  of  Cottington,  Fitzg.  195  ;  but  Lord  Ray- 
mond said  that  it  was  not  necessary,  in  all  cases,  that  the  witness  should  have 
seen  the  pahy  write,  to  whose  hand  he  swears  ;  for  where  there  has  been  a 
fixed  correspondence  by  letters,  and  it  can  be  made  out  that  the  party  wnling  is 
the  same  man  that  attested  the  deed,  it  will  enable  the  witness  to  swear  to  that 
person's  hand-writing,  although  he  never  saw  him  write.     And  Page,  J.  said, 
if  a  subscr;bin.T  witness  to  a  deed  live  in  the  West  Indies,  whose  hand-writing 
is  to  be  proved  in  England,  a  witness  here  may  swear  to  his  hand-writmg,  by  hav- 
ing seen  the  letters  of  such  person,  written  by  him  to  his  correspondent  rn  Kng- 


18  CIVIL  REMEDY— EVIDENCE. 

[  18  ]  still  at  liberty  to  *rebut  the  strong  presumption  thus 
raised  against  him,  by  reconciling  the  fact  with  his  inno- 
cence. 

[  *19  ]  *Hand-writing  must  be  proved  by  those  who  know  the 

general  character  of  the  handwriting  of  the  party,  and 

[  *20  ]  not  by  comparison  of  hands,  for  *jurors  may  not,  it  is 
said,  be  competent  to  make' the  comparison  (p)  ;  this 

land  ;  because,  under  the  special  circumstances  of  that  case,  there  is  no  other 
way,  or  at  least  the  difficulty  will  be  great  of  proving  the  handwriting  of  such 
subscribing  witness.  The  court  in  this  case  rejected  the  testimony,  not  on  ac- 
count of  the  insufficiency  of  the  evidence  to  prove  the  hand-writing  to  be  that  of 
the  person  who  had  written  the  letters  demanding  rent,  but  because  the  identity 
of  that  person  with  Cottington,  the  attesting  witness,  had  not  been  made  out. 

The  meie  seeing  the  superscription  of  letters,  at  the  post-office,  purporting  to 
have  been  franked  by  the  party,  is  not  a  sufficient  foundation  for  this  kind  of 
evidence,  Gary  v.  Pitt.  Peake's  Ev.  105.  And  see  Lord  Ferrers  v.  Shirley, 
Fiiz.  195,  for  the  superscription  may  have  been  forged.  A  witness  who  swears 
to  his  belief  of  hand-writing,  must  form  his  judgment  from  his  recollection  of 
the  general  character  of  the  hand-writing  of  the  party,  and  not  from  any  extrin- 
sic or  collateral  circumstances.  Mr.  Caldecot  was  allowed  to  state  his  belief 
that  the  hand-writing  was  not  that  of  Mr.  Mickle,  the  author  of  the  Luciad, 
because  he  was  a  very  correct  man  in  making  capital  and  small  letters  where 
such  were  required  ;  and  in  the  writing  produced,  that  correctness  was  not  ob- 
served, for  the  observation  arose  from  the  character  of  the  hand-writing  itself. 
See  Dacosta  v.  Pym,  Appeal,  to  Peake's  L.  E. 

But  in  the  same  case,  of  Dacosta  v.  Pym,  the  witness  saying  that  the  hand- 
writing was  like  the  plaintiff's,  but  that  he  did  not  think  it  was  his,  because  the 
plaintiff  was  too  much  a  man  of  the  world  to  sign  such  an  account ;  Lord  Ken- 
yon  held,  that  the  answer  was  improper,  and  that  the  witness  ought  to  found  his 
opinion  upon  the  character  of  the  hand-writing  only. 

Where  the  witness  had  never  seen  the  defendant  (who  was  sued  as  the  ac- 
ceptor of  a  bill  of  exchange,)  write,  his  name.,  till  after  the  commencement  of 
the  action,  and  then  only  for  the  purpose  of  showing  him  the  difference  be- 
tween his  hand-writing  and  that  of  the  acceptance  to  the  bill,  his  testimony  was 
held  to  be  inadmissible.     1  Esp.  C.  14.  15.     Vide  4  Esp.  C  27. 

ip)  By  comparison  of  hands  is  now  meant  a  comparison  by  the  juxta-position 
of  two  writings,  in  order  by  such  comparison  to  ascertain  whether  both  were 
written  by  the  same  person  ;  Brookbard  v.  Woodley,  Peake's  C.  2L  Macpher- 
son  V.  Thoytes,  Peake's  C.  20.  Stranger  v,  Searle,  1  Esp.  C.  14.  Goodtille 
V.  Braham,  4  T.  R.  497.  Here  it  may  be  observed,  that  such  evidence  as  is 
now  deemed  to  be  receivable  and  legal  evidence  of  hand-writing,  as  distinct 
from  evidence  by  comparison  of  hands,  seems  foimerly  to  have  been  considered 


PUBLICATION.  21 

reason,  however,  *is  not  satisfactory  ;  for  if  the  jurors       [  *21  ] 

cannot  read,  they  may  nevertheless  receive  the  evidence 

as  evidence  by   comparison  of  hands,  and   as  inadmissible,  at  least  in  criminal 
cases.     In  the  case  of  Algernon  Sidney,  3  St.  Tr.  802.  3  Car.  II.  two  of  the 
•witnesses  who  swore  to  their  belief  of  his  hand-writing  had  seen  him  write,  and 
the  thiid  had  paid  bills  purporting  to  have  been  endorsed  by  the  defendant.     Yet 
the  prisoner,  in  his  defence,  insisted  that  nothing  but  comparison  of  hand-writing 
had  been  offered  in  evidence  against  him.     And  the  statute  reversing  his  attain- 
der, recites  that  there  had   not  been  sufficient  legal  evidence  of  any  treasons 
committed  by  him,  there  being  produced  a  paper  found  in  his  closet,  supposed 
to  be  his  hand-writing,  but  which  was  not  proved  by  any   one  witness  to  have 
been  written  by  him,  but  that  the  jury    were  directed  to  believe  it  by  comparing 
it   with  other   writings  of  his.     So  also   in  the  celebrated  case  of  the  Seven 
Bishops,  4  Jac.  II.  4  St.  Tr.  338.     Sir  Thomas  Exon  stated,  that  he  had  never 
seen  the   Archbishop  of  Canterbury  write  live  times  in  his  life,  but  that  he 
believed  one  of  the  signatures  on  the  paper  produced  to  have  been  written  by 
the  archbishop. 

Mr.  Brookes  stated,  that  he  believed  another  signature  to  have  been  written 
by  the  Bishop  of  Ely  ;  but,  upon  cross  examination,  it  turned  out  that  his  belief 
was  founded  upon  the  resemblance  which  the  writing  bore  to  that  contained  in 
a  letter  sent  to  the  Bishop  of  Oxford,  which  letter  the  witness  concluded  to 
have  been  written  by  the  Bishop  of  Ely,  from  having  waited  upon  him  with  the 
Bishop  of  Oxford's  answer,  and  communicated  with  him  on  the  subject  of  the 
original  letter. 

Upon  this  evidence,  Mr.  Justice  Powell  observed,  "  That 's  a  strange  in 
ference,  Mr.  Solicitor,  to  prove  a  man's  hand."  Mr.  Attorney  General—"  We 
have  more  evidence,  but  let  this  go  as  far  as  it  can."  Mr.  Serjeant  Pemberton 
— '•  Certainly,  my  lord,  you  will  never  suffer  such  a  witness  as  this."  Lord  C 
J.  Wright—"  Brother  Pemberton,  I  suppose  they  can  prove  it  otherwise,  or 
else  this  is  not  evidence." 

After  some  other  evidence  had  been  given,  Mr.  Justice  Powell  observed.  "  Mr. 
Solicitor,  I  think  you  have  not  sufficiently  proved  this  paper  to  be  subscribed  by 
my  Lords  the  Bishops."  Mr.  Solicitor  General,  "  Not  to  read  it,  sir?"— Mr. 
J.Powell,  "No,  not  to  read  it:  it  is  too  slender  a  proof  for  such  a  case.  I 
grant  you,  in  civil  actions,  a  slender  proof  is  sufficient  to  make  out  a  man's  hand, 
by  a  letter  to  a  tradesman  or  a  correspondent,  or  the  like  ;  but  in  criminal  cases, 
(such  as  this  is,)  if  such  a  poof  be  allowed,  where  is  the  safety  of  your  life,  or 
any  man's  life  here?"— Mr.  Solicitor  General,  "  We  tell  you  a  case  where  it 
was  allowed,  and  that  is  Mr.  Sidney's  case— a  case  of  treason,  atid  printed  by 
aulhori  y.     We  tell  you  nothing  but  what  was  done  the  other  day." 

L.  C.  J.  Wright— "I  tell  you  what  I  say  to  it:  I  think  tiuly  there  is  proof 


22  CIVIL  REMEDY— EVIDENCE. 

[  *22  ]       *of  witnesses  who  are  able  to  make  the  comparison.     It 

[  *23  ]       has  also  been  suggested,  *that  if  such  a  comparison  were 

to  be  allowed,  an  unfair  selection  of  specimens  might  be 

enough  to  have  it  read,  and  I  am  not  ashamed  nor  afraid  to  say  it,  for  T  know  I  speak 
■with  the  law,  say  what  you  will  of  criminal  case's  and  the  danger  of  people's 
lives  ;  there  were  more  danger  to  the  government,  if  such  proof  were  not  allow- 
ed to  be  good."— Mr.  J.  Powell—"  I  think  there  is  no  danger  to  the  govern- 
mert  at  all,  in  requiring  good  proof  against  offenders." — Lord  C.  J. — "  Here's 
my  Lord  Archbishop,  and  the  Bishop  of  St.  Asaph,  and  my  Lord  of  Ely  ;  their 
hands  are  proved ;  it  is  proved  to  be  my  Lord  Archbishop's  writing  by  Mr. 
Brookes;  and  he  proves  my  Lord  of  Ely's  hand  by  com;?arison,  and  so  my 
Lord  of  Asaph's.  Now,  brother  Pemberton,  there's  an  answer  to  your  objec- 
tion. It  being  proved  that  it  is  all  my  Lord  Archbishop's  hand-writing;  then 
they  come  and  say,  '  We'll  prove  the  hands  of  the  others  by  comparison ;  and  for 
that  they  bring  you  witnesses,  that  say,  they  have  received  letters  from,  and 
seen  their  hand-wiiting  several  times  ;  and  comparing  what  they  have  seen  with 
this  very  paper,  says  the  witness,  '  I  do  believe  it  to  be  his  hand.'  Can  there 
be  a  greater  evidence,  or  a  fuller." — Mr.  Serejant  Pemberton — "  Admit  it  to  be 
full  evidence  against  my  Lord  Archbishop  ;  what's  that  to  the  resf?  There's 
no  evidence  against  them." — Mr.  Justice  Allybone — "  Brother  Pemberton,  as  to 
the  objection  you  make  of  comparing  hands,  it  is  an  objection  indeed,!  do  agree  ; 
but  then  consider  the  inconvenience  which  you  and  Mr.  Polexfen  do  so  much  in- 
sist upon.  If  a  man  should  be  accused  by  a  comparison  of  hands  where  is  he  ; 
he  is  in  a  most  lamentable  case,  for  his  hand  may  be  so  counterfeited,  that  he 
himself  may  not  be  able  to  dibtinguish  it. — But  then  you  do  not  consider  where 
you  are,  on  the  other  side  ;  that  may  be  an  objection  in  matters  of  fact,  thai 
will  have  very  little  weight,  if  compared  and  set  altogether.  For  on  the  other 
side,  where  shall  the  government  be,  if  I  will  make  libels,  and  traduce  the  gov- 
ernment with  prudence  and  discretion,  and  all  the  secrecy  imaginable  :  Fl!  write 
my  libel  by  myself,  prove  it  as  you  can.  That's  a  fatal  blot  to  the  government, 
and  therefore  the  cases  are  not  the  same,  nor  is  your  doctrine  to  pass  for  current 
here,  because  every  case  depends  upon  its  own  facts.  If  I  take  upon  me  to 
swear  I  know  your  hand,  the  inducements  are  to  myself,  how  I  came  to  know 
it,  so  as  to  swear  to  it.  Knowledge  depends  upon  circumstances  ;  I  swear  that 
I  know  you,  but  yet  I  may  be  under  a  mistake,  for  I  can  have  my  knowledge  of 
you  no  other  way  but  from  the  visibility  of  you.  And  another  man  may  be  so 
much  like  you,  that  there  is  a  possibility  of  my  being  mistaken  :  but  certainly 
that  is  evidence,  good  evidence.  Now  here  are  several  gentlemen  that  swear 
as  to  my  Lord  Archbishop's  hand-writing.  I  do  agree  as  to  some  of  the  others, 
that  the  evidence  is  not  so  strong  for  what  that  man  said,  that  he  did  believe  it 
was  rather  such  a  lord's  hand,  than  that  which  went  before,  or  that  which  came 
after,  it  is  of  no  weight  at  all,  and  so  some  of  the  others,  but  it  is  positively 


PUBLICATION.  24 

made  for  *the   purpose   of  comparison ;  this,  however,       [  *24  ] 
would  be  open  to  inquiry  and  observation,  and  *scarcely       [  *2o  ] 
seems  to  be  a  ground  for   the  total  exclusion  of  such 
proved  against  my  Lord  Archbisl.op.      And  one  or   two  more,  so  that  that's 
enough  to  induce  the  readirrg  of  this  writing." 

Mr  Justice  Holloway-"  Good,  my  Lord,  let  me  give  my  opmion.  - 
LordC  J -"With  all  my  heart,  brother.  "-Mr.  J.  Holloway-"  My  Lord,  I 
think,  as  this  case  is,  there  ought  to  be  a  more  strong  proof;  for  certainly  the 
proof  ouaht  to  be  stronger  and  more  certain  in  criminal  matters  than  in  civil 
matters.  °  In  civil  matters  we  do  go  upon  slight  proof,  such  as  the  comparison 
of  hands  for  proving  a  deed,  or  a  witness's  name,  and  a  very  small  proof  will 
induce  us  to  read  it ;  but  in  criminal  matters  we  ought  to  be  more  strict,  and 
require  positive  and  substantial  proof,  that  is  fitting  for  us  to  have  in  such  a  case, 
and  without  belter  proof,  I  think  it  ought  not  to  be  read." 

L.  C.  Justice—"  You  must  go  on  to  some  other  proof,  Mr.  Solicitor,  for  the 
court  is  divided  in  their  opinions  about  this  proof." 

The  defendant*  having  committed  a  riot  upon  the  person  of  Sir  F.  W-  in 
his  own  house,  an  information  was  filed  against  him,  and  he  produced  a  witness 
to  swear  to  the  contents  of  a  letter  from  the  prosecutor,  who  deposed  it  was  in 
the  same  hand  with  another  letter  which  had  been  admitted  to  be  read  in  evi- 
dence. Bat  Holt,  C.  J.  said,  "  In  the  case  of  a  deed  lost  or  burnt,  we  will 
admit  a  copy  or  counterpart,  or  the  contents  to  be  given  in  evidence  ;  but  we 
never  permit  it  unless  it  be  proved  that  there  was  such  a  deed  executed.  Now 
here  the  witness  cannot  prove  this  letter  written,  for  he  never  had  seen  the  pros- 
ecutor write,"  and  therefore  it  was  disallowed. 

In  Croshfs  case,  12  Mod.  72.  Holt,  753.  Salk.  689.  Ld.  Raymond,  39,  which 
was  a  trial  before  Holt,  C.  J.  for  high   treason,  several  treasonable  papers  were 
produced,  which  the  witnesses  swore  they  believed  to  be  in  the  hand-wriiing  ot 
the  prisoner.     And  on  this  a  question  arose,  whether  comparison  of  hands  was 
evidence.     And  the  court  held,  that  though  it  was  not  sufficient  for  the  original 
foundation  of  an  attainder,  it  might  be  well  used  as  a  circumstantial  and  con- 
firming evidence  \,iii\ie  fact  be  otherwise  fully  proved,  as  in   Lord  Preston's 
case,  where  it  was  proved  that  he  attempted   to  go  with  certain  papers  into 
France,  and  where  they  were  found  upon  his  person  ;  but  that,  in  the  principal 
case,  since  they  were  found  elsewhere,  to  convict  on  a  similitude   of  hands, 
would  be  to  run  into  the  error  of  Colonel  Sidney's  case.     Upon  this  trial,  the 
prisoner  produced  a  copy  of  the  act  of  parliament  for  the  reversal  of  Sidney  s 
attainder,  in  which  it  is  declared  that  the  comparison  of  hands  is  not  legal 
evidence. 

*  R  V  Sir  T.  Culpepper,  Holt's  R.  293.  ,    ,  -o     i, 

t  S^e  Ihe  cat;s  of  Layer  Ld.  Preston,  Algernon  Sidney  St.  Tr.  ^^^  of  Buchanan, 
and  Dr.  Hensey,  1  Bur.  642,  and  the  trial  of  O'Connor  and  others,  at  Maidstone. 


:io 


CJXIL  REMEDY— EVIDENCE. 


evidence :  and,  perhaps,  after  all,  the  most  satisfactory  reason  is, 
that  if  such  comparisons  vrere  to  be  allovred,  it  would  open  the  door 
to  the  admission  of  a  great  deal  of  collateral  evidence,  which  might 
branch  out  into  a  verj  inconvenient  length  ;  for,  in  everj  case,  it 
would  be  necessary  to  go  into  distinct  evidence,  to  prove  each  spe- 
cimen produced  to  be  genuine  ;  and  even  in  support  of  a  part.cular 
st>ecimen  (if  the  present  rule  were  to  be  broken  through)  evidence 
of  comparison  would  be  receivable  in  order  to  establish  the  specimen, 
and  so  the  evidence  might  branch  ou:  to  an  indefinite  extent.  The 
ordinary  practiee  is  seldom  attended  widi  inconvenience  ;  for  if  the 
hand-writing  be  not  that  of  the  party,  i:  is  more  easy  for  him  to 
disprove  it  than  it  would  be  for  his  adversary  to  prove  it  in  case  it 
were  crenuine  ;  for  it  must  be  within  his  own  pecucliar  knowledge 
what  witnesses  have  so  intimate  an  acquaintance  with 
[  ''2Q  ]  his  hand  writing  as  to  be  able  to  prove  the  'forgery  ;  but 
where  it  is  genuine  his  adversary  has  the  wrinesses  to 
seek  for.  It  cannot,  however,  be  denied,  that  abstractedly,  a  wit- 
ness is  more  likely  to  form  a  correct  judgment  as  to  the  identity  of 
hand-writing,  by  comparing  it  crincally  and  minutely  with  a  f  dr  and 
genuine  specimen  of  the  party's  hand-writing,  than  he  could  be  able 
to  make  hj  comparing  what  he  sees  with  the  faini  impression  made 
by  having  seen  the  party  write  but  once,  and  then,  perhap*,  under 
circumstances  which  did  not  awaken  his  attention. 

In  some  instances,  where  the  antiquity  of  the  writing  makes  it  im- 
possible for  any  living  witness  to  swear  that  he  ever  saw  the  party 
write,  ccmparison  of  hand-writing  with  docmnenis  known  to  be  in 
his  hand-writing  has  been  admitted  (^q). 

In  the  case  of  Ji^rett  y.  Braham  (r),  a  clerk  from  the  post  office, 
who  had  been  employed  to  inspect  franks  and  detect  forgeries,  was 
admitted  on  a  trial  at  bar  to  give  his  opinion,  as  a  matter  of  skill 
and  judgment,  whether  a  will  Tvas  written  in  a  natural  or  imitated 
character.  He  admitted,  in  his  examination,  that  he  had  never  de- 
tected an  imitation  cf  the  hand-writing  of  an  old  person 
[  '27  ]     "who  wrote  with  difficulty,  and  who  might  be  supp<»ed 

iq-)  By  Le  Blanc,  J.     Roe  r.  Rawlings.  7  East.  282.  B.  X.  P-  236.     See  also 
Taylor  r.  Cooke,  S  Price  653. 
(V)  4  T.  R.  497. 


PUBLICATION.  2r 

frequently  to  stop ;  and  that  he  judged  principallj  by  see- 
ing whether  the  letters  were  what  is  called  painted,  or  passed 
over  bj  the  pen  a  second  time,  which  might  happen  to  any  person 
from  a  failure  of  ink.  After  giving  it  as  his  opinion  that  the  will 
was  not  genuine,  a  paper  was  produced,  admitted  to  have  been 
written  by  the  person  suspected  of  having  forged  the  will,  and  he 
was  asked  his  opinion  whether  that  paper  and  the  will  had  been 
wiitten  by  the  same  person,  and  the  question  was  objected  to,  but 
admitted  by  the  court.  But,  in  the  case  of  Cary  v.  Pitt  («), 
Lord  Kenyon  refused  to  admit  the  testimony  of  an  inspector  of 
franks  at  the  post  office,  toprore  that  the  hand-writing  of  the  accept- 
ance of  a  bill  of  exchange  purporting  to  b©  the  defendant's,  was 
genuine  ;  saying,  that  although  such  evidence  had  been  received  m 
the  case  of  Revelt  v.  Braham  (f),  yet  that,  in  his  charge  to  the 
jury,  he  had  laid  no  stress  upon  it.  And  in  the  case  of  the  King 
V.  Cator  (m),  an  inspector  was  admitted  to  swear  (t?)  that  the  libel 
was  written  in  a  disguised  land  ;  but  he  was  not  allowed 
to  give  his  opinion  upon  a  comparison  of  the  libel  with  [  *28  1 
another  writing,  whether  they  had  been  written  by  the 
same  person. 

The  same  rules  which  apply  to  the  proof  of  handwriting  in  civil, 
apply  also  to  evidence  in  criminal  proceedings  (x),  although,  form- 
erly, the  rule  in  criminal  cases  was  more  rigid  than  m  civil  ac- 
tions (?/)  [1]. 

(5)  Peake's  L.  E.  Append. 

(0  4  T.  R.  497.  (o)  4  Esp.  C.  117. 

(r)  In  a  late  case,  evidence  of  the  opinion  of  an  inspector  of  franks  at  the 
post  office,  whether  the  vrnting  was  in  a  natural  or  imitated  character,  was  held 
to  be  of  so  little  weight,  that  the  court  of  K.  B.  refused  to  grant  a  new  trial, 
on  the  ground  that  such  evidence  had  been  rejected  at  the  trials,  Gumey  v. 
Longlands,  5  B.  &  A.  330. 

(j)  Francia's  case,  6  St.  Tr.  70.  Layer's  case.  Ibid-  275.  R.  r.  Hensev,  I 
Burr.  644.  Ld.  Preston's  case,  4  St.  Tr.  446.  De  La  Motte's  case,  Howell's 
Equ.  2  T.  R.  St.  Tr.  vol.  21.  810.  The  Attorney  General  r.  Le  Meichant,  2 
T.  R.  201,  note  (a),     B.  X.  P.  236.  R  v.  Cator,  4  Esp.  C.  117. 

(y)  Per  Kelynge,  C.  J.  Can's  case,  and  4  St.  Tr.  333. 

fl]  See  a  n  amber  of  cases  in  the  American  Courts  on  the  subject  of  proof  by 
comparison  of  hand-writing,  in  Peake's  Ev.  by  Norris,  p.  157,  n. 

See  also  Southirick  r.  Sterens,  10  Johns.  R.  443,  and   McCorkle  r.  Binns,  5 

Vol.  II.  G6 


28  CIVIL  REMEDY— EVIDENCE. 

The  wilful  and  intentional  delivery  of  a  libel,  by  way  of  sale  or 

otherwise,  as  by  a  bookseller  or  hawker,  is  a  sufficient  publication, 

though  the  party  so  publishing  did  not  know  the  con- 

[  *'29  ]       tents  (2).     *So  a  printer  is  liable,  though  he  printed  a 

libel  in  the  way  of  his  trade  (a). 

A  defendant  may  be  guilty  of  publishing  a  libel  not  only  by  dis- 
tributing copies  of  it  with  his  own  hand,  but  by  employing  an  agent 
for  the  purpose  (b). 

The  declaration  generally  avers,  that  the  defendant  published  and 
caused  to  be  pubhshed:  but  the  latter  words  seem  to  be  perfectly 
unnecessary,  either  in  a  civil  or  criminal  proceeding  ;  in  civil  pro- 
ceedings, the  principal  is  to  all  purposes  identified  with  the  agent 
employed  by  him  to  do  any  specific  act,  and  in  treason  and  misde- 
meanors (c)  all  accessories  are  considered  as  principals. 

A  consent  by  the  master  to  the  act  of  the  servant  in  printing  a 
libel,  is  prima  facie  evidence  of  a  publication  by  the  master  {d). 

•An  allegation   that  the  defendant  published  the  libel 

[  *30  ]       is  satisfied  by  proof  that  it  was  published  by  his  agent  (<;) 

if  an  authority  from  the  principal  to  the  agent  can  be 

proved ;  and  although  an  authority  to  commit  an  unlawful  act  will 

not  in  general  be  presumed,  yet  it  is  otherwise  in  the  case  of  book- 

Binney  340,  as  to  witnesses  proving  a  newspaper  from  its  appearance,  &c.  to  be 
the  paper  published  by  the  defendant. 

(z)  Wood's  Inst.  431.  ]\Ioore  627.  It  is  said,  "  It  is  not  material  whether 
the  peison  who  disperses  libels  is  acquainted  with  their  contents  or  otherwise, 
for  that  nothing  would  be  more  easy  than  to  publish  the  most  virulent  papers 
with  the  greatest  security,  if  the  concealing  the  purport  of  them  from  an  illiter- 
ate publisher,  would  make  him  safe  in  dispersing  them.  And  that,  on  this 
foundation,  it  has  been  constantly  ruled  of  late,  that  the  buying  of  a  book  or  pa- 
per containing  libellous  matter,  at  a  bookseller's  shop,  is  sufficient  evidence  to 
charge  the  master  with  the  publication,  though  it  does  not  appear  that  he  knew 
of  any  such  book  being  there,  or  what  the  contents  thereof  were,  and  that  it  will 
not  be  presumed  that  they  were  brought  there  by  a  stranger  ;  but  the  master,  if 
he  suofgests  any  thing  of  this  kind  in  his  excuse,  must  prove  it."  Bac.  Ab.  tit. 
Libel,  458. 

(a)  R.  V.  Dover,  16  C.  II.     2  St.  Tr.  547,  Hargreave's  ed. 

{h)  7  East.  65.     Bac,  Ab.  tit.  Libel,  458.  (c)  2  Hale's  P.  C.  613. 

{d)  R.  V.  Harris,  2  St.  Tr.  1039.  See  Ld.  Camden's  obversations  in  En- 
tick  V.  Carrington,  11  St.  Tr.  322-  (e)  Hale's  P.  C.  613. 


PUBLICATION.  29 

sellers  and  others,  where  the  book  or  libel  is  purchased  from  an 
agent  in  the  usual  course  of  trade  (/)• 

(/)  Bac.  Ab.  tit.  Lihcl,  458.  The  following  are  the  principal  cases  ■which 
have  been  decided  on  this  point.  In  Elizabeth  Xutt's  case,  Fitzg.  47,  2  G.  2. 
the  defendant  was  tiied  on  an  infornaation  for  publishing  a  treasonable  libel.  It 
appeared  in  evidence  that  the  defendant  kept  a  pamphlet  shop,  and  that  this 
libel  was  sold  in  the  shop  by  the  defendant's  servant,  for  the  defendant's  use 
and  account,  in  her  absence,  and  that  she  did  not  know  the  contents  of  it,  nor 
of  its  coming  in  or  going  out ;  and  per  Raymond,  L.  C  J.  notwithstanding  the 
defendant  is  guilty  of  publishing  this  libel,  the  shop  being  kept  under  her  au- 
thority and  direction ;  It  would  be  a  very  dangerous  thing  that  the  law  was 
otherwise,  and  it  has  been  so  ruled  in  a  great  many  instances.  But  the  jury 
being  unable  to  agree  in  a  general  verdict,  and  thinking  it  a  hard  case  upon  the 
defendant,  refused  to  find  a  general  verdict,  and  were  desirous  of  finding  the 
facts  specially ;  and  ultiraalely,  the  Attorney-General  agreed  to  withdraw  a 
juror,  which  was  done.  According  to  the  report  of  the  same  case  in  Barnard- 
iston  306,  the  Lord  Chief  Justice  observed,  that  if  a  servant  carries  a  libel  for 
his  master,  he  certainly  is  answerable  for  what  he  does,  though  he  cannot  so 
much  as  write  or  read.  It  is  impossible  not  to  dissent  from  this  doctrine  so  ex- 
pressed, without  the  qualification  added,  that  the  servant  had  some  reason  to 
know  that  he  was  discharging  an  illegal  mission. 

In  the  case  of  the  King  r.  Dodd,  2  Sess.  33,  on  an  information  for  selling  and 
publishing  a  libel  against  Chambers,  it  was  insisted  upon,  for  the  defendant,  that 
she  was  sick,  and  that  the  libel  was  taken  into  her  house  without  her  knowledge. 
But,  by  the  court,  this  is  no  excuse,  and  the  law  presumes  her  to  be  acquainted 
with  what  her  servant  does.  Mr.  J.  Fortescue  said,  that  it  had  been  ruled,  that 
the  finding  a  libel  on  a  bookseller's  shelf  was  a  publication  of  it  by  the  book- 
seller. And  L.  C.  J.  Raymond  said,  it  hath  been  ruled  that  where  a  master 
being  out  of  town,  his  trade  is  carried  on  by  his  servant,  the  master  shall  be 
chargeable  with  the  servant's  publishing  a  libel  in  his  absence. 

In  the  case  of  the  King  v.  Almon,  5  Barr.  2689,  the  liability  of  booksellers 
was  much  discussed,  and  the  court  expressed  an  opinion  that  the  sale  of  a  libel 
in  a  bookseller's  shop,  was  prima  facie  evidence  of  a  publication,  though  not  so 
conclusive  but  that  it  might  be  rebutted  by  circumstances.  It  does  not  indeed 
appear  what  would  have  been  deemed  by  the  court,  to  be  sufficient  to  rebut  such 
prima  facie  evidence,  and  to  excuse  the  owner  ;  but  it  seems  to  be  clear,  from 
the  general  context  of  the  decisions  on  this  subject,  that  a  bookseller  is  consid- 
ered as  standing  in  a  situation  of  peculiar  responsibility,  and  that  he  is  liable 
criminally  as  well  as  civilly,  for  libels  sold  in  his  shop  in  the  usual  course  of 
business,  though  without  his  particular  knowledge. 

The  defendant  had  been  convicted  of  publishing  a  libel  (one  of  Junius's  let- 
ters) in  one  of  the  magazines,  called  the  London  Museum,  which  was  bought  at 
his  shop,  and  purported  to  be  printed  for  him. 


31  CIVIL  REMEDY— EVIDENCE. 

[  *31   ]        *The  sale  by  an  agent  in  a  shop  ia  the  usual  course  of 
business  is  prima  facie  evidence  of  a  publication  with  che 

The  defendant  was  found  guilty  on  proof  that  the  libel  in  question  had  been 
sold  in  his  shop.  A  motion  was  afterwards  made  for  a  new  trial,  on  an  affida- 
vit, the  principal  bearing  of  which  was,  that  the  libel  had  been  sent  to  his  shop, 
and  sold  there  by  a  boy  without  his  knowledge,  privity,  or  approbation.  But 
the  court  were  of  opinion,  that  none  of  the  matters  on  behalf  of  the  defendant, 
nor  all  of  them  added  together,  were  reasons  for  grantmg  a  new  trial,  whatever 
weight  they  might  have  in  extenuation  of  his  offence,  and  in  consequence  less- 
ening his  punishment  ;  for  they  were  extremely  clear  and  unanimous  in  opinion, 
that  this  libel,  being  bought  in  the  shop  of  a  common  known  bookseller  and 
publisher,  importing  by  its  title-page  to  be  printed  for  him,  was  a  sufficient 
prima  facie  evidence  of  its  being  published  by  him  ;  not  indeed  conclusive,  be- 
cause he  might  have  contradicted  it,  if  the  facts  would  have  borne  it  by  contrary 
evidence. 

In  the  above  case,  Lord  Mansfield  observed,  "  A  libel  cannot  be  read  against 
a  defendant  before  it  has  been  proved  upon  him.  This  must,  however,  be 
understood  of  such  frima  facie  proof  of  publication  as  would  be  sufficient  to  be 
left  to  a  jury  ;  for  no  evidence  on  the  pan  of  the  plaintiff  or  in  support  of  a 
prosecution,  can  in  strictness  amount  to  proof,  since  the  evidence  of  any  wit- 
nesses, is  always  liable  to  be  rebutted  by  opposite  testimony,  and  must  after  all 
depend  for  its  effect  upon  the  credit  given  by  the  jury  to  the  character  of  the  wit- 
nesses, and  the  circumstnnces  under  which  such  evidence  is  given."  Aston,  J. 
observed,  thai  the  evidence  of  his  publishing  that  which  was  bought  in  his  shop, 
must  stand  till  the  contrary  appears.  There  may,  indeed,  (he  said)  be  circum- 
stances of  extenuation,  or  even  of  exculpation,  and  if  it  were  a  surprise  upon 
him,  the  court  would  have  regard  to  such  circumstances  as  far  as  they  merited 
their  regard,  and  he  cited  Harris's  case,  5  St.  Tr.  1037.  Hudson's  case,  Hil.  3 
G.  1,  and  R.  v.  Nutt,  Fitzg.  47.  Harris's  case,  it  is  observable,  is  little  to  the 
point;  there  was  evidence  that  the  defendant  gave  directions  for  printing  the 
libel;  that  it  was  afterwards  sold  in  his  shop,  and  that  he  had  acknowledged 
the  publication. 

In  the  King  v.  Walter,  3  Esp.  C  21,  Lord  Kenyon  held,  that  the  proprietor 
of  a  newspaper  was  answerable  criminally  as  well  as  civilly,  for  the  acts  of  his 
servants  or  agents  in  misconducting  a  newspaper  ;  he  said,  that  this  was  not  his 
opinion  only,  but  that  of  Lord  Hale,  Justice  Powell,  and  Justice  Foster,  all 
high  law  authorities,  and  to  which  he  subscribed.  This  he  added,  was  the  old 
received  law  for  above  a  century,  and  was  not  to  be  broken  in  upon  by  any  new 
doctrine  upon  libels.  The  same  doctrine  is  said  to  have  been  held  in  the  case  of 
the  King  v.  Culhel,  K.  B.  1799,  and  by  Lord  Ellenborough,  C.  J.  in  R.  v.  White, 
Guildh.  1811.  See  Holt's  Law  of  Libel.  287.  The  sale  of  every  separate 
copy  of  a  libel  is  a  distinct  offence,  R.  v.  Carlile,  1  Chitty,  453. 


PUBLICATION.  32 

knowledge  and  privity  of  the  'owner ;  and  although  it  bo     [  *32  ] 
not  conclusive  evidence,  yet  it  throws  upon  him  the  ne- 
cessity of  *rebutting  the  presumption  by  evidence  to  the     [  *33  ] 
contrary  ((/),  even  although  the  principal  lives  at  a  dis- 
tance from  his  shop  ^A).     But  the  defendant  *may  rebut     [  *34   ] 
the  presumption,  by  evidence  that  the  libel  was  sold  con- 
trary to  his  orders,  or  clandestinely ;  or  that  some  deceit  or  surprise 
was  practiced  on  him  (i)  ;  or  that  he  was  absent  under  circumstan- 
ces which  entirely  negative   any  presumption   of  privity  or  conni- 
vance (70  [1]  [ad]. 

(g)  Ibid  :  and  R.  v.  Almon,  5  Burr.  2689.  R.  v.  Dodd,  2724.  2  Esp.  C  33- 
Di'^''  L  L.  27  And  Wood's  Ins.  443,  2  Sess.  C.  33.  12  Vin.  Ab.  229.  Plunk- 
eav.  Corbelt,  5  Esp.  C  186.     Haw.  P.  C.  c.  73,  s.  10.      Barnard  K.  B.  208. 

(A)  R.  V.  Dodd,  2  Sess.  C.  -33.  Dig.  L.  L.  27  ;  supra  note  (/)  for  the  law 
presumes  that  the  master  is  acquainted  with  what  his  servant  does  in  the  course 
of  his  business.     And  see  R.  v.  Nutt,  Barnard  K.  B.  308.    Fitzg.  47.  Dig.  L. 

\i)  See  the  observations  of  Aston,  J.  in  R.  «.  Almon,  5  Burr.  2686.      Supra 

rote  (/). 

(Jl)  As  when  a  printer  is  confined  in  prison  to  which  his  servants  have  no  ac- 
cess, and  they  publish  a  libel  without  his  privity.  Woodfall's  case.  Leach's 
ed.  of  Haw.  b.  1,  c.  73,  s.  10,  note  (3). 

[1]  In  Massachusetts  it  hath  been  held  in  Smith  v.  Ashley,  11  Metcalf  367, 
that  the  publisher  of  a  newspaper  containing  a  libellous  article,  is  not  liable  to 
an  action,  if  at  the  time  of  the  publication  he  has  no  knowledge  that  the  article 
is  libellous.  With  all  respect  it  is  conceived  that  this  decision  may  be  question- 
ed as  it  is  not  warranted  by  the  authorities  cited  in  the  case.  How  can  the  de- 
fendant's want  of  knowledge  of  the  libellous  character  of  the  article  be  shown? 
In  the  very  nature  of  things  the  defence  is  not  susceptible  of  proof  (Van  Ness  v. 
Hamilton,  19  Johns.  R.  372.)  Besides  if  the  article  was  so  artfully  concocted,  that 
a  man  of  ordinary  intelligence,  might  be  mislead  by  it  so  as  to  deem  it  a  mere  fan- 
cy-sketch, as  it  seems  was  pretended  in  this  case,  all  that  can  be  asked  m  such  ft 
case  is  that  the  jury  may  be  instructed  to  take  the  circumstance  into  consideration 
in  mitigaiion  of  damages  ;  but  surely  it  constitutes  no  defence.  See  ante  Vol.  I. 
p.  212,  it  seq.  and  p.  22r,  n.  (z). 

[a  a\  In  the  case  of  Rex  v.  Gutch  and  another,  1  Moody  and  Malkin  433,  on  an 
information  against  proprietors  of  a  newspaper  for  publishing  a  libel,  Lord 
Tenterden,  C.  J,  in  summing  up  said,  "  On  the  part  of  Mr.  Gutch, it  is  con- 
tended that  the  proprietcr  of  a  newspaper  who  is  not  shown  to  take,  or  who  can 
show  that  he  took  no  part  in  the  publication  of  the  newspaper,  and  of  the  libel  in 
question,  is  not  criminally  responsible.  Now,  whether  it  is  so  shown  in  this  case 


34  CIYIL  REMEDY— EVIDENCE. 

Where  in  an  action  for  a  libel  it  appeared  that  the  libel  was  writ- 
ten in  the  hand  of  the  daughter  of  the  defendant  (a  minor),  who 
usually  wrote  his  letters  of  business,  but  no  evidence  was  given  of 
any  authority  to  write  the  letter  in  question,  or  of  any  recognition 
of  the  letter  by  him,  it  was  held  that  there  was  no  evidence  to  go  to 
the  jury  of  a  publication  by  the  defendant,  since  this  was  not  an  act 
within  the  scope  of  the  defendant's  authority  (0- 

If  one  procure  another  to  publish  a  libel,  the  procurer  is  guilty 
of  a  publication,  wherever  it  takes  place,  and  the  actual  publisher, 
like  any  other  partic^pB  criminis,  is  competent  to  prove  his  employ- 
ment by  the  defendant,  and  the  consequent  *publication 
[  *35  ]  (ti).  And  if  a  letter  be  sent  by  the  post  it  is  a  public- 
ation by  the  defendant  in  any  county  to  which  the  letter 
is  in  consequence  sent  (o). 

"Where  the  defendant  has  admitted  that  he  is  the  author  of  a  par- 
ticular book,  errors  excepted,  it  is  incumbent  upon  him  to  prove  that 
the  errors' so  excepted  are  material  (j?). 

In  the  case  of  libel,  as  well  as  in  all  others,  whether  civil  or 
criminal,  presumptive  evidence  must  be  resorted  to  in  failure  of  di- 

is  a  fact  for  you  to  consider  ;  bat  I  am  bound  to  state  the  law  as  I  have  received 
it  from  my  predecessors.  I  cannot  propose  to  you  a  different  rule  from  what  I 
find  adopted  by  those  who  have  filled  my  situation  before  me.  Now,  it  is  con- 
ceded that  it  has  been  held  in  several  cases  that  a  proprietor  so  situated  is  crim- 
inally answerable.  Bat  it  is  said  that  this  is  a  different  principle  from  that 
which  prevails  in  all  other  criminal  cases  ;  but  this  does  not  appear  to  me  to  be 
so ;  the  rule  seems  to  me  to  be  comformable  to  principle  and  to  common  sense  , 
sorely  a  person  who  derives  profit  from,  and  who  furnishes  means  for  carrying 
on  the  concern,  and  entrusts  the  conduct  of  the  publication  to  one  whom  he  se- 
lects, and  in  whom  he  confides,  may  be  said  to  cause  to  be  published  what  ac- 
tually appears,  and  ought  to  be  answerable,  although  you  cannot  show  that  he 
was  individually  concerned  in  the  particular  publication.  It  would  be  exceed- 
ingly dangerous  to  hold  otherwise  ;  for  then  an  irresponsible  person  might  be 
put  forward,  and  the  person  really  producing  the  publication,  and  without  whom 
it  could  not  be  published,  might  remain  behind  and  escape  altogether. 

(/)  Harding  v.  Greening,  1  Moore  477. 

(n)  R.  V.  Johnson,  7  East.  65.  R.  r.  Dodd,  2  Sess.  C.  33.  Bac  Ab-  tit-  Li- 
bel, 497.     Wood's  Ins.  445. 

(o)  R.  V.  Watson,  1  Camp.  215,  infra  p.  36. 

(p)  R.  f.  Hall,  Str.  416. 


PUBLICATION.  So 

rect  and  positive  testimony ;  and  the  same  reasonable  inferences  and 
presumptions  are  to  be  made  by  the  juries  as  in  all  other  instances. 
In  criminal  cases  ic  is  always,  and  in  civil  cases  it  is  in  some  in- 
stances, necessary  to  prove  a  publication  within  the  panicular  coun- 
ty. It  seems  that  whenever  the  publication  of  a  libel  has  once  been 
authorized  by  the  defendant,  he  is  guilty  of  a  publication  in  whatever 
county  the  libel  shall  afterwards  be  in  consequence  published  (5). 

(<;)  B.  X.  P.  6.  R.  i\  Johnson,  7  East.  65.     If  A,  send  a  libel  to  London  to 
be  printed' and  published,  it  is  his  act  in  London,  if  the  publication  be  there. 
R.  V.  Middleton,  Sir,  77.    In  the  case  of  the  King  r.  The  Honorable  Robert 
Johnson   7  East.  65,  the  defendant  was  indicted  in  the  county  of  Middlesex  for 
havin-  published  a  libel  in  Cobbetf  s  Weekly  Register.     Mr.  Cobbett,  the  pub- 
li-her^of  the  Register,  proved  that  he  had   received  an  anonymous  letter  (the 
oricrinal  of  vhich  he  believed  to  be  destroyed.)  in  the  same  hand-writing  as  the 
libe°ls^vhich  he  afterwards  received;  in  which  letter  (parol  evidence  of  which 
was  admitted  to  be  given  for  this  purpose,)  the  >vriter  inquired  whether  it 
would  be  aareeable  to  Mr.  Cobbett  to  receive  for  publication,  in  his  Register, 
certain  information  of  public  affiurs  in  Ireland,  and  if  it  were,  he  was  desired  to 
say  to  whom  such  information  was  to  be  directed.    la   consequence  of  the  re- 
ceipt of  this  letter,  which  was  published  in  the  Register,  Mr.  Cobbett,  through 
the  medium  of  the  same  Register,  requested  the  promised  information  to  be  di- 
rected to  Mr.  Budd,  No.  100,  Pall  Mall,  whose  shop  was  at  that  time  used  by  Mr. 
Cobbett  for  the  publication  of  his  Register,  where  letters  of  communicauon  were 
addressed  to  him,  and  from  whence  he  received  them,  his  own  house  being  m 
Duke-street.  Westminster.     After  this  intimation.  Mr.  Cobbett  received,  in  due 
time  two  several  letters,  containing  different  parts  of  the  libels  in  quesuon  both 
in  the  same  hand-writing  with  the  letter  previously  received.     Both  the  letters 
came  under  cover,  but  the  covers  were  believed  either  to  be  destroyed  or  lost, 
havina  been  thrown  aside  as  useless;  and  therefore  parol  evidence  was  admit- 
ted to^>rove  that  thev  had  the  Irish  post-mark  upon  them,  and  were  ^irected  in 
the  manner  pointed'out  in  the  Register.    The  first  of  the  letters  dated  '.9:h 
October  1S03,  was  received,  and  the  cover  opened  by  Mr.  Budd,  who  thereupon 
sent  it  Jo.ether  with  the  cover  opened,  to  Mr.  Cobbett  in  D.ke-street,  by  a  per- 
son  in  the°offi.e  whom  the  witness  did  not  recollect.     But  in  consequence  of  his 
de.irincT  Mr.  Budd  not  to  open  any  other  letters   so  directed,  Mr.  Cobbett  re- 
ceived Ihe  next  letter,  which  came  to  Mr.  Budd,  by  a  subsequent  post  unopen- 
ed    Several  witnesses  were  thes  called,  who.  upon  examination  of  the  letters 
so  received  bv  Mr.  Cobbett,  swore  to  their  belief  of  Uieir  being  the  hand  writing 
of  the  defendant,  who  at  the  period  in  question,  was  an  Irish  jud-e.     It  was 
then  proposed,  bv  the  attorney-general,  that  the  letters   containmg   the  libels 
should  be  read,  which  he  said  contained  internal  evidence  that  they  wrer«  written 


86  CIVIL  REMEDY— EVIDENCE. 

[  *36  ]  Where  the  writer  of  a  libel  sent  it  •by  the  post,  directed 
to  A.  B.  in  tbe  county  B.  and  it  was  in  consequence  sent 

[  *37  ]  into  the  county  *B.  and  from  thence  sent  by  the  post  to 
A.  B.  in  the  county  M.  where  A.  B.  received  it  and  read 

[  *38  ]     *it,  it  was  held  to  be  a  pubUcation  in  the  county  M.  (r). 

If  the  libel  be  dated  of  a  particular  place,  the  date  is  evidence 
that  it  was  written  there  (s).  It  has  been  said,  that  the  post-mark 
upon  a  letter  is  not  ^rima  facie  evidence  to  prove  that  a  letter  has 
been  put  into   the   post-office   at  the  place  denoted  by   the   post 

and  sent  by  the  writer  to  Mr.  Cobbett,  for  the  purpose  of  being  published  in  his 
Register. 

But  the  reading  was  objected  to,  upon  the  ground  that  there  was  no  evidence 
to  go  the  jury,  of  a  publication  hy  the  defendant  in  Middlesex.  That,  admitting 
the  libels  to  be  inlhe  hand-writing  of  the  defendant,  there  was  no  evidence  to 
show  that  he  had  sent  them  into  Middlesex  to  be  there  published,  nor  any  ptivi- 
ty  established  between  himself  and  Cobbett.  The  case  of  the  Seven  Bishops 
was  quoted  as  in  point ;  and  it  was  contended,  that  if  any  publication,  proved  to 
have  taken  place  in  Middlesex,  was  sufficient  ground  for  the  reading  of  the  libel 
there,  it  ought  to  have  been  read  in  that  case,  since  the  petition,  which  had  been 
acknowledged  to  have  been  signed  by  them,  was  found  in  the  king's  hands  in 
Middlesex  ;  and  that  the  only  link  there  wanting  was,  that  it  came  there  by  the 
agency  of  the  Bishops,  which  was  holden  not  to  be  supplied  by  the  evidence  of 
their  acknowledgment  of  their  hand-writing  in  that  county.  The  trial  was  at 
bar,  before  Lord  EUenborough,  C.  J.  and  Grose,  Lawrence,  and  Le  Blanc,  Jus- 
tices 

But  it  was  answered  by  the  court,  that  the  case  of  the  Seven  Bishops  was  ir- 
relevant; that  it  had  been  soundly  ruled  in  their  case,  that  the  confession  of 
their  signatures,  extorted  from  them  as  it  was,  did  not  amount  to  evidence  of  a 
publication  in  Middlesex  ;  that,  in  the  present  case,  a  publication  in  Middlesex 
had  been  proved  by  Mr,  Cobbett,  and  that  the  notification  by  letter  to  him,  that 
he  should  receive  certain  papers  for  the  purpose  of  publication,  the  public  an- 
swer in  the  Register  appointing  the  mode  of  sending,  and  the  consequent  re- 
ceipt of  papers  by  Cobbett,  through  that  channel,  answering  the  description  of 
those  proposed  to  be  sent,  and  proved  to  have  been  written  by  the  defendant, 
aflTorded  evidence  to  go  to  a  jury  to  decide,  whether  the  publication  in  Middlesex 
had  not  been  made  through  the  defendant's  procurement.  The  jury  found  the 
defendant  guilty. 

(r)  R.  V.  Waston,  1  Camp.  215  ;  and  see  R.  v.  Girdwood,  East's  P.  C.  1116 
1120. 
(5)  R.  V.  Burdett,  4  B.  &  A.  95. 


PUBLICATION.  39 

mark  (t)  ;   it  seems,  however,  from  a  later  authority,  that  the  post- 
mark is  a  fact  *admissible  in  evidence,  when  corroborated 
bj  other  circumstances  (h).  [  *39  J 

A  genera!  confession  that  the  defendant  was  the  writer 
of  a  libel,  does  not  amount  to  an  admission  that  he  published  it,  still 
less  is  it  a  confession  that  he  pubhshed  it  in  any  particular  coun- 
ty (a;). 

A  late  case  upon  this  subject  excited  much  interest,  and  occa- 
sioned much  legal  investigation  and  discussion.     The  points  were 
shortly  as  follow.     The  information  charged  the  defendant  with 
composing,  writing,  and  publishing  a  libel  in   Leicestershire  ;    A. 
stated  that  he  received  the  libel,  which  was  in  the  hand- 
writing of  the  defendant,  from  *B.  on  the    24th  of  Au-     [  *40    ] 
gust  (^),  it  was  contained  in  an  envelop,  which  had  been 
destroyed,  but  which,  to  the  best  of  the  witness's  recollection  was 
addressed  to  B.  who  was  the  professional  friend  of  the  defendant; 
there  was  no  trace  of  any  seal,  either  on  the  envelop  or  paper. 
The  paper  was  dated  Kirby  Park,  August  the  22d.     Kirby  Park 
(the  defendant's  seat)  being  situate  in   Leicestershire,  100  miles 
from  London,  not  far  from  the  boundary  between  the  counties  of  Lei- 
cester and  Rutland.    The  defendant  was  seen  in  the  county  of  Leices- 

(0  R.  V.  Waston,  1  Camp.  215.     But  the  defendant  was  found  guilty  of  ano- 
ther publication. 

(u)  R.  V.  Johnson,  7  East.  65 ;   note,  that  in  this  case  the  post-mark  seems  to 

have  been  perfectly  immaterial ;  but,  upon  principle,  there   seems  to  be  little 

♦  doubts  that  a  post-mark  upon  a  letter,  in  the  hand-writing  of  a  defendant,  and 

received  through  the  medium  of  the  post,  is  evidence,  as  a  circumstance  arising 

in  the  usual  course  and  routine  of  business.     See  Fletcher  v.  Braddyll,  3  Star- 

kie's  C.  64.  ,  ^    ^ 

{X)  The  Seven  Bishops'  case,  4  St.  Tr.  304  ;  4  Jac  II,  where  the  defendants, 
in  Middlesex,  admitted  their  signatures  to  a  petition  which  had  been  prepared 
and  signed  in  Surrey  ;  but  it  was  held  that  this  was  not  evidence  of  a  publi- 
cation "of  that  which  was  termed  (but  grossly  misnamed)  a  libel  in  the  county 
of  Middlesex.  And  see  the  observations  upon  this  case  by  Ld.  Ellenborough, 
C.  J.  and  Lawrence,  J.  in  R.  v.  Johnson,  7  East.  65  ;  and  R.  v,  Burdett,  4  B. 

&A. 

(y)  A.  did  not  state  where  he  received  it,  but  it  was  assumed,  and  no  doubt 
it  was  the  fact,  that  he  received  it  in  Middlesex. 

Vol,  II.  67 


40  CIVIL  REMEDY— EVIDENCE. 

ter,  near  Kirby  Park,  on  the  22d  and  on  the  23d  of  August,  and 
there  was  no  evidence  of  his  having  left  the  county  of  Leicester  till 
after  the  publication  (s)  of  the  paper,  -which  took  place  on  the  25th  ; 
the  only  words,  either  on  the  paper  or  envelop,  besides  the  libel,  were 
*'  forward  this  to  A."  (the  witness).  The  paper  was  addressed  to 
the  electors  of  "Westminster;  and  A.  had  no  reason  for  supposing 
that  the  defendant  intended  that  it  should  be  published,  except 
that  it  was  so  addressed.     A.  having  been  required  to  give  up  the 

author,  the  defendant  wrote  a  letter  admitting  that  he 
[  *41  ]     was  the  author.     *jS"o  evidence  was  given  on  the  part 

of  the  defendant.  It  was  objected  at  the  trial,  and 
afterwards  in  the  Court  of  King's  Bench,  after  the  conviction  of  the 
defendant,  on  a  motion  for  a  new  trial,  that  there  was  no  evidence 
of  a  fuUication  in  Leicestershire.  The  learned  judge  left  it  to 
the  jury  to  say,  whether  there  had  been  a  publication  in  Leicester- 
shire, by  an  open  delivery  of  the  libel.  The  question  and  the 
principles  relating  to  it,  were  discussed,  on  the  motion  for  a  new 
trial,  with  all  the  aid  which  talent,  learning,  experience,  and  un- 
•wearied  diligence  could  supply.  The  ultimate,  although  it  seems 
not  the  unanimous,  decision  of  the  court  was,  that  the  evidence 
was  sufficient  to  warrant  the  conviction  (a). 

(«)  i.  e.  in  the  public  newspapers. 

(a)  R.  V.  Sir  '.Francis  Burdett,  Bart.  4  B-  &  A.  717.  The  judges  delivered 
their  opinions  seriatim.  Best,  J.  was  of  opinion  that  there  was  presumptive 
evidence  of  an  actual  publication  in  Leicestershire,  and  that  the  sending  the  li- 
bel by  the  post,  from  that  county,  amounted  to  a  publication.  R.  v.  Watson, 
1  Camp.  215.  R.  v.  Williams,  2  Camp.  505.  Codex  Lib.  9.  tit.  36  ;  and  see 
Girdwood's  case,  East's  P.  C  1116,  1120. 

Holroyd,  J.  was  of  opinion,  that  the  composing  and  writing  a  libel  in  the 
county  of  L.  and  afterwards  publishing  it,  although  the  publication  was  not 
within  the  county  of  L.,  was  an  offence  sufficiently  charged  as  a  substantive 
offence  in  the  information,  and  which  gave  jurisdiction  to  a  jury  of  the  county 
of  L.  (see  R.  v.  Beere,  2  Salk.  417.  Carth.  409.  Holt's  R.  422.  R.  v.  Knell, 
Barnard,  K.  B.  305.  R.  v.  Carter,  9  St.  Tr.)  and  that  the  composing  and  writ- 
ing, with  the  intent  afterwards  to  publish,  also  amounted  to  a  misdemeanor  ; 
and  that  a  jury  of  the  county  of  L.  might  inquire  as  to  the  publishing  in  anoth- 
er county,  in  order  to  prove  the  defendant's  intention  in  composing  and  writing 
in  the  county  of  L.     And  that,  in  the  case  of  an  aggregate  charge,  part  of 


PUBLICATION.  42 

*Some  proofs  are  to  be  noticed  vrhich  apply  par-  [  *42  ] 
ticularly  to  the  proprietors  and  publishers  of  newspapers. 
Upon  an  indictment  for  a  libel,  *published  in  a  news-  [  *43  ] 
paper  called  the  World,  proof  that  the  paper  was  sold  at 
the  defendant's  office,  and  that  he  as  i^foprietor^  had  given  a  bond 
to  the  stamp  oflSce,  as  required  by  the  stat.  29  Geo.  III.  c.  10,  s. 
10,  for  securing  the  duties  on  advertisements,  and  that  he  had  from 
time  to  time  applied  to  the  stamp-office  respecting  the  duties,  was 
held  to  be  strong  evidence  to  prove  a  publication  by  him  (6). 

Hart  and  WJdte  the  printer  and  proprietor  of  a  newspaper  called 
"  The  Independent  Whig  (c),"  vvere  indicted  in  London,  for  a  libel 
published  in  that  paper. 

The  prosecutor  gave  in  evidence  the  affidavits  sworn  by  the  de- 
fendants, according   to  the  stat.  38   G.  III.  c.  78  (cZ), 

which,  being  in  itself  a  substantive  misdemeanor,  is  committed  within  a  particu- 
lar county,  the  jury  may  inquire  into  the  remainder,  although  done  elsewhere  ; 
that  there  was  reasonable  evidence  of  a  publication  in  L. ;  and  that  a  delivery  of 
a  libal  within  the  county,  although  it  be  sealed,  is  a  publication  in  law. 

r>ayley,  J.  was  of  opinion  that  there  was  not  sufficient  evidence  to  support  a 
presumption  that  there  had  been  an  open  delivery  of  the  libel  in  L.,  considering 
that  positive  proof  might  have  been  given  by  calling  B.  as  a  witness.  He  gave 
no  opinion  on  the  question,  whether  a  close  delivery  amounted  to  a  publication. 
He  held,  that  the  whole  corpus  delicti  must  be  proved  within  one  county  ;  and 
that  there  was  no  distinction  in  this  respect  between  felonies  and  misdemeanors. 
He  gave  no  opinion  on  the  question,  whether  the  composing  a  writing,  with  in- 
tent to  publish,  constituted  an  offence. 

Abbott,  L.  C.  J.  intimated  his  opinion,  that  mere  delivery  constituted  a  pub- 
lication. He  held  that  the  facts  warranted  the  conclusion  that  the  paper  had 
been  delivered  by  the  defendant  in  L.,  to  B.,  in  the  state  in  which  it  had  been 
delivered  by  the  latter  to  A.  That,  even  supposing  the  libel  to  have  been  de- 
livered by  the  defendant  in  a  different  county,  yet  as  the  whole  was  a  mis- 
demeanor, compounded  of  distinct  parts,  each  of  which  was  an  act  done  in  the 
prosecution  of  the  same  criminal  intention,  the  whole  might  be  tried  in  the 
county  of  L.  where  one  of  those  acts  had  been  done. 

{h)  R.  V.  Topham,  4  T.  R.  126.  (c)   10  East.  94. 

(rf)  By  sect.  1,  no  person  shall  print  or  publish  any  newspaper  until  certain 
affidavits,  or  affirmations,  &c.  shall  have  been  delivered  to  the  commissioners, 
of  stamps,  &c. 

By  sect.  2,  these  must  contain  a  true  description  of  the  printers,  publishers, 
and  proprietors,  or  of  two  of  them,  and  of  their  places  of  abode  ;  of  the  propri- 


44  CIVIL  REMEDY— EVIDENCE. 

[  •'44  ]      "with  their  hands-writing  *thereto  and  delivered  to  the  com- 

mijsioners,  containing  all  the  particulars  required  by  the 

[  *45  ]       act,  *and,  amongst  the  rest,  the  description  of  the  place 

etors'  share  in  the  paper,  and  the  house  in  which  it  is  intenued  to  be  printed, 
and  of  its  title. 

By  sect.  9,  all  such  affidavits  and  affirmations,  or  copies  thereof,  certified  to 
be  true  copies  according  to  the  act,  shall,  in  all  proceedings,  civil  and  criniinal, 
touching  any  newspaper,  or  other  such  paper  as  aforesaid,  which  shall  be  men- 
tioned in  any  such  affidavits  or  affirmations,  or  touching  any  publication,  matter, 
or  thing  contained  in  any  such  newspaper  or  other  paper,  be  received  and  ad- 
mitted as  conclusive  evidence  of  the  truth  of  all  such  matters  set  forth  in  such 
affidavits  or  affirmations,  as  are  hereby  required  to  be  therein  set  forth,  against 
every  person  who  shall  have  signed,  sworn,  or  affirmed  such  affidavits  or  affirm- 
ations ;  and  shall  also  be  received  and  admitted,  in  like  manner,  as  sufficient  ev- 
idence of  the  truth  of  all  such  matters,  against  all  and  every  person  who  shall 
not  have  signed  or  sworn,  or  affirmed  the  same,  but  who  shall  be  therein  men- 
tioned to  be  a  proprietor,  printer,  or  publisher  of  such  newspaper,  or  other 
paper,  unless  the  contrary  shall  be  satisfactorily  proved.  The  section  then  con- 
tains an  exception  in  favour  of  such  as  have,  before  the  publication  of  the  paper 
in  question,  delivered  into  the  commissioner  an  affidavit,  &c.,  stating  that  they 
have  ceased  to  be  the  printers,  &c.  of  such  paper. 

By  the  lOih  section,  in  some  part  of  every  newspaper,  &c.  shall  be  printed  the 
names,  additions,  and  places  of  abode  of  the  printers  and  publishers,  and  of  the 
place  where  the  same  is  printed. 

By  sect.  11,  it  shall  not  be  necessary,  after  any  such  affidavit,  &c.  or  a  certi- 
fied copy  thereof,  shall  have  been  produced  in  evidence  as  a  foresaid,  against  the 
persons  who  signed  and  made  such  affidavit,  or  are  therein  named,  according  to 
this  act,  or  any  of  them,  and  after  a  newspaper,  or  other  such  paper  as  afore- 
said, shall  be  produced  in  evidence,  intituled  in  the  same  manner  as  the  news- 
paper, or  other  paper  mentioned  in  such  affidavit  orcopy  is  intituled,  and  where- 
in the  name  or  names  of  the  printer  and  publisher,  or  printers  and  publishers, 
and  the  place  of  printing,  mentioned  in  such  affidavit  or  affirmation,  for  the 
plaintiff,  informant,  or  prosecutor,  or  person  seeking  to  recover  any  of  the  pen- 
alties given  by  this  act,  to  prove  that  the  newspaper  or  paper  to  which  such 
trial  relates,  was  purchased  at  any  house,  shop,  or  office  belonging  to  or  occu- 
pied by  the  defendant  or  defendants,  or  any  of  them,  or  by  his  or  their  servants 
or  workmen,  or  where  he  or  they,  by  themselves,  or  their  servants  or  workmen, 
usually  carry  on  the  business  of  printing  or  publishing  such  paper,  or  where  the 
same  is  usually  sold. 

By  sect.  13,  it  is  enacted,  that  a  certified  copy  of  such  affidavit  or  affirmation 
shall  be  delivered  by  the  commissioners  to  the  person  requiring  it,  upon  payment 
of  one  shillinor. 


PUBLICATION.  46 

•where  the  newspaper  was  printed,  -which  *was  in  London.  [  '46  ] 
An  officer  from  the  Stamp-Office,  (which  is  not  in  Lon- 
don) produced  a  newspaper,  "without  stating  from  whence  it  came, 
containing  the  hbel  in  question,  which  newspaper  answered  the  whole 
description  contained  in  the  affidavit,  and  stated,  at  the  foot  of  it, 
that  it  was  printed  at  No.  33,  Warwick-lane,  London  ; 
and  *it  was  also  proved  that  the  defendant's  printing-house  [  *47  ] 
was  at  the  same  place. 

The  defendants  were  found  guilty,  but  a  new  trial  was  afterwards 
fnoved  for,  on  the  ground  that  the  evidence  at  the  trial  was  insuffi- 
cient to  prove  a  publication  in  London  ;  that  the  9th  clause  of  the 
act  cited  made  the  affidavit  evidence  of  nothing  more  than  the  mat- 
ters contained  therein,  which,  by  reference  to  the  second  clause,  are 

By  sect.  14,  in  order  to  prevent  the  inconvenience  which  might  result  from  re- 
quiring the  personal  attendance  of  the  commissioners,  it  is  enacted,  that  a  cer- 
tificated copy  of  any  affidavit  or  affirmation,  proved  to  be  signed  by  the  person 
who  his  the  custody  of  the  original,  shall,  without  proof  that  he  is  a  commis- 
sioner or  officer,  be  received  in  evidence  as  sufficient  proof  of  such  affidavit  qr 
affirmation,  and  that  the  same  was  duly  sworn  or  affirmed,  and  of  the  contents 
thereof;  and  that  such  copies,  so  produced,  and  certified,  shall  also  be  received 
as  evidence  that  the  affidavit  or  affirmation  of  which  they  purport  to  be  copies 
have  been  sworn  or  affirmed  according  to  this  act ;  and  shall  have  the  same  ef- 
fect in  evidence  as  the  originals  would  have  had  in  case  they  had  been  produced 
and  proved  to  have  been  duly  so  certified,  sworn,  and  affirmed,  by  the  person 
appearing  by  such  copy  to  have  sworn  or  affirmed  the  same  as  aforesaid. 

By  the  17th  section,  it  is  enacted,  that  every  printer  or  publisher  of  any  news- 
paper, or  other  such  paper,  shall  within  six  days,  deliver  to  the  commissioners, 
or  their  officer,  one  of  the  papers  so  published,  signed  by  the  printer  or  publish- 
er in  his  hand-writing,  with  his  name  and  place  of  abode  ;  and  that  the  same 
shall  be  kept  by  the  commissioners  or  their  officer,  under  a  penalty,  in  case  of 
neglect  by  such  printer  or  publisher,  of  £100  ;  and  that  upon  application  by  any 
person  to  the  commissioners  or  their  officer,  to  have  such  paper  produced  in  evi- 
dence in  any  proceeding,  whether  civil  or  criminal,  such  commissioners  orofficer 
shall,  at  the  expense  of  the  applicant,  at  any  time  wilhin  two  years  from  the 
publication,  either  cause  the  same  to  be  produced  in  the  court,  and  at  the  time 
when  the  same  is  required  to  be  produced,  or  shall  deliver  the  same  to  the  ap- 
plicant, on  his  giving  reasonable  security  at  his  own  expense,  for  returning  the 
same  ;  and  that  in  case  such  commissioner  or  their  officer  cannot,  by  reason  of  a' 
previous  application, comply  with  the  terms  of  a  subsequent  one,  they  shall  com- 
ply with  such  subsequent  one  as  soon   afterwards  as  they  shall  be  able  so  to  do. 


47  CIVIL  REMEDY— EVIDENCE. 

the  names,  additions,  descriptions,  and  places  of  abode  of  the  printers 
publishers,  and  proprietors,  the  description  of  the  printing-house 
and  title  of  the  paper  ;  that  it  was  still  necessary  to  prove  a  publi- 
cation in  the  county  where  the  trial  was  had,  since  the  paper,  though 
printed  in  one  place  may  be  published  in  another  ;  that  the  11th 
section  is  confined  to  actions  or  informations  for  penalties  given  by 
the  act ;  that  the  object  of  the  17th  clause  was  to  fix  the  print- 
ing and  publication  upon  the  parties  described  in  the  stamp-office 
documents,  by  comparing  the  newspaper  so  delivered  with  any  other 
of  the  same  impression  published  in  the  county  where  the  trial  is 
had  ;  but  that  a  publication  to  the  commissioners,  under  the  direc- 
tion of  the  act,  could  not  be  considered  as  a  libellous  and  guilty  pub- 
lication, without  any  other  evidence  of  publication  in  the  same  place  ; 
that,  besides,  the  newspaper  was  only  producd  by  an 
[  *48  ]  *officer  from  the  stamp-office,  without  any  proof  how  it 
came  there,  or  from  whom  it  was  received. 
The  court  were  satisfied  that  the  evidence  of  a  publication  in 
Loudon  Avas  sufficient  (e),  on  the  ground  that  "  the  act  requiring  an 
affidavit  to  be  made  by  the  printers,  proprietors,  and  publishers, 
specifying  their  names  and  places  of  abode,"  &c.  makes  the  affidavit 
conclusive  as  to  the  several  facts  contained  in  it,  as  against  the  per- 
sons signing  it,  unless  they  ceased  to  be  printers  before  the  publica- 
tion complained  of.  That  had  the  act  stopped  here,  the  affidavits 
would  be  conclusive  that  one  of  the  defendants  was  the  printer  and 
publisher,  and  the  other  the  proprietor  of  the  paper  so  intituled ;  and 
that  it  was  printed  at  the  place  therein  described,  which  is  within 
the  city  of  London,  that  would  have  put  them  upon  shewing  that 
the  paper  produced  was  a  fabrication.  But  the  11th  section  goes 
further,  and  enacts,  that  proof  of  the  affidavit  shall  render  it  un- 
necessary to  prove  that  a  newspaper,  corresponding  in  title,  &c.  with 
the  one  described  in  the  affidavit,  and  to  which  the  trial  relates,  was 
purchased  at  any  house,  &c.  belonging  to  or  occupied  by  the  de- 
fendants, their  servants,  &c.  or  where  they  usually  carry 
[  *49  ]  on  the  business  of  printing  or  puWishing  *such  paper,  or 
where  the  same  is  usually  sold. 

(e)  Lord  Ellenborough,  C.  J.  gave  no  opinion. 


PUBLICATION.  49 

That,  at  all  events,  the  11th  section  superseded  the  necessity  of 
further  proof,  since  the  •words  of  it,  plaintiff,  informer,  prosecutor, 
&c.  were  general,  and  not  confined  to  informants  seeking  to  recover 
penalties. 

Where  the  defendant,  having  exhibited  a  libellous  paper,  retains 
it  in  his  possession,  if,  after  notice  to  produce  it,  he  refuse,  parol 
evidence  may  be  given  of  its  contents,  and  that  even  in  cases  of 
treason  (/)  ;  and  a  printer  may  prove  that  he  received  a  libel  in 
manuscript  from  the  defendant,  and  returned  it  to  him  (.(/). 

To  prove  (A)  the  publication  of  a  newspaper,  an  unstamped  copy 
may  be  given  in  evidence,  and  the  witness  may  swear,  that  similar 
papers  were  published. 

A  delivery  of  a  newspaper,  according  to  the  provisions  of  the 
Stat.  38  G.  III.  c.  78,  to  the  officer  of  a  stamp-office,  is  a  sufficient 
publication,  though  it  is  directed  by  the  statute,  for  the  officer  has 
an  opportunity  of  reading  it  (i). 

Where  the  libel  has  been  published  in  a  foreign  *lan-  [  *50  ] 
guage,  it  must  be  shown^  by  means  of  a  sworn  interpreter, 
that  the  translation  set  out  in  the  declaration  is  a  correct  one  (fe). 
Where  an  indictment  charges  the  defendant  with  composing,  print- 
ing, and  publishing  a  libel,  he  may  be  found  guilty  of  the  printing 
and  publishing,  or  of  the  publishing  only  (I). 

Where  a  governor  of  a  British  colony  has  made  communications 
to  the  attorney-general  of  the  colony  as  such,  the  latter  is  not  bound 
to  reveal  them  in  an  action  against  the  former  (?i).  So  it  has  been 
held  to  be  optional,  on  the  part  of  a  barrister,  whether  he  will  dis- 
close what  passed  in  court  upon  his  making  a  motion  for  a  criminal 
information  (o).  According  to  the  general  rule  of  law,  that  a  wit- 
ness is  not  bound  to  criminate  himself,  no  witness  is  bound  to  answer 

(/)  See  Le  Merchant's  case,  2  T.  R.  201.     Layer's  case  6  St.  T.  229. 
(0-)  R.  V.  Pearce,  Peake's  Cas.  75.  (A)  Ibid, 

(i)  R.  V.  Amphlht,  4  B.  &  C.  35.  (A)  Supra  vol.  I.  p.  368. 

(I)  R.  V.  Williams,  2  Camp.  506.  R.  v.  Hunt,  ib.  583.  2  East's  P.  C. 
515.  6.  (n)  Wyatt  v.  Gore,  Holt's  C.  299. 

(o)  Per  Eyre,  C  J.  1  Esp.  C.  456. 


60  CIVIL  REMEDY— EVIDENCE. 

a  question,  where  the  answer  may  tend  to  shew  that  he  has  been 
guilty  of  publishing  a  libel,  for  which  he  may  be  indicted  (p). 
Next,  as  to  proof  of  the  colloquium  or  innuendos. — Having  proved 

the  act  of  speaking  the  words,  or  publishing  the  libel, 
[  *51  ]       the  next  step  is  to  *prove  their  appUcation  to  the  plaintiff, 

and  to  the  extrinsic  matters  whose  existence  is  alleged 
in  the  introductory  part  of  the  declaration  or  indictment,  where  the 
illegality  of  the  words  or  libel  depends  upon  their  application  to  such 
extrinsic  facts.  This  is  usually  done  by  the  testimony  of  one  or 
more  witnesses  who  know  the  parties  and  circumstances,  and  who 
can  state  their  judgment  and  opinion  on  the  application  and  meaning 
of  the  terms  used  by  the  defendant,  as  alleged  in  the  declaration  or 
indictment.  As  such  evidence  is  simply  as  to  a  result  or  conclusion 
which  the  witness  may  have  derived  from  a  great  variety  of  circum- 
stances, it  is  sufficient  if,  in  the  first  instance,  he  state  his  belief  and 
opinion  as  to  the  defendant's  meaning  generally,  if  he  think  proper, 
to  inquire  as  to  the  means  and  grounds  which  the  witness  had  for 
forming  that  conclusion. 

The  meaning  of  the  defendant,  as  averred  by  an  innuendo,  is  a 
question  of  fact,  to  be  decided  by  the  jury  (5). 

Where  the  words  are  spoken  in  a  foreign  language,  or  where  the 

terms  are  ambiguous,  and  it  is  doubtful  in  what  sense  the 
[  *52  ]       speaker  intended  *them,  the  question  is,  in  what  sense 

the  hearers  understood  them  ;  and  if,  where  words  may 
have  two  meanings,  the  hearers  understood  them  in  an  actionable 
sense,  the  action  is  maintainable  ;  for  the  slander  and  damage  con- 
sists in  the  apprehension  of  the  hearers  (r).  Where  slander  is  pub- 
lished in  a  foreign  language,  it  is  necessary  to  shew  that  the  hearers 
understood  the  language,  for  it  will  not  be  presumed  that  being 
ignorant  of  the  words,  they  afterwards  repeated  them  to  those  who 

(p)  Moloney  r.  Bartley,  3  Camp.  C  210;  supra  vol.  1.  p.  251  ;  and  see 
Starkie  on  Evidence,  pt.  iv.  1740. 

(q)  Per  Lord  Ellenborough,  C.  J.  in  Roberts u.  Cambden,  9  East.  96,  Sir  W. 
Blackstone.  2  W.  BI.  962,  and  Gould,  J.  in  Oldham  v.  Peake,  2  W.  Bl.  959, 
Covvp.  278,  and  see  Penfold  v.  Westcote,  2  N.  R.  335. 

(r)  Fleetwood  v.  Cuiley,  Hob.  207  ;  for  where  slanderous  words  are  spoken, 
which  are  wrong,  the  doers  are  answerable  for  all  evil  intents  and  damages.     Jb. 


MALICE. 


52 


understood  them  (s)-  But  it  seems  that  \vhere  the  words  are  ac- 
tionable in  respect  of  extrinsic  facts,  as  for  instance,  that  they  Avere 
spoken  of  the  liaintiff  in  his  character  of  an  attorney,  it  is  not 
essential  to  shew  that  the  hearers  knew  the  fact  at  the  time  of  the 
speaking,  for  they  may  know  it  afterwards,  and  communicate  the 
words  to  those  who  know  it  (0- 

Next  as  to  the  evidence  of   malice  and  intention.— It  has  been 
already  observed,  that  where  words  have  been  uttered,  or  a  libel 
has  been  published  of  the    plaintiff,  by  which  actual  or  presumptive 
damage  has  been  occasioned,  the  malice  of  the   defend- 
ant  *is  a  mere  inference  of  law  from  the  very  act,  for     [  *o3  ] 
the  defendant  must  be  presumed  to  have  intended  that 
which  is  the  natural  consequence  of  his  act  (u) .     In  such  mstances, 
therefore,  it  is  unnecessary  to  give  evidence  of  malice  m  fact  or 
actual  malice,  unless  it  may  be  by  the  way  of   aggravating  the 
damacres.      In  other  cases,  the  occasion  and  circumstances  ot  the 
speaking  and  publishing  repel  the  action,  either  peremptorily  and 
absolutely,  or  unless  express  malice  exist ;    and  in  this  latter  class 
of  cases,  where  actual  malice  is  essential  to  the  action,  it  lies  on 
the  plaintiff  to  prove  the  fact.     Where  the  burthen  of  proving  ex- 
press malice  is  thus  thrown  upon  the  plaintiff,  he  may  give  in  evi- 
dence any  expressions  of  the  defendant,  whether  they  be  oral  or 
written,  which  indicate  spite  and  ill  will,  for  the  purpose  of  shew- 
ing the  temper  and  disposition  with  which  he  made  the  publication 
complained  of. 

It  has,  however,  been  held,  that  other  words  or  libels  are  not 
admissible  evidence  to  show  the  quo  animo,  unless  they  relate  tothe 
same  subject.  An  action  was  brought  for  a  libel  published  in  a 
periodical  work,  called  the  Satirist,  or  Monthly  Meteor,  which  sta- 
ted (inter  alia)  that  the  plaintiff,  being  prosecuted  by 
the  attorney-general,  *had  fled  the  country,  that  he  [  04  J 
micTht  save  himself  from  the  pillory.     To  prove  the  ma- 

(s)  p.  C.  Hob.  268  ;  and  see  1  Vin.  Ab.    507,  and  Gilb.  Cas.  L.  &.  E.  117. 
(t)P.C.  Fleetwood  v.  Curley,  Hob.  267. 

(«)  Prosser  ..  Bromage  4  B.  &  C.  247.  supra  vol.  L  220,  R.  v.  Harvey,  2 
B.  &  C.  258.  supra  vol.  I.  p.  215. 
"VoL.  II.  68  /• 


54  CIVIL  REMEDY— EVIDENCE. 

licious  motive  of  the  defendant,  the  plaintiflF's  counsel  proposed  to 
read  extracts  from  a  subsequent  number  of  the  Satirist,  but  Sir  J. 
Mansfield,  C.  J.  rejected  them  all,  except  one,  -ffhich  had  imme- 
diate reference  to  the  former  libel  (.-c). 

But  it  is  to  be  remarked  that,  in  this  case,  there  was  no  doubt 
as  to  the  animus ;  the  publication  was  cleai-lj  libellous  in  itself, 
and  the  occasion  of  publishing  did  not  render  proof  of  malice  in 
fact  necessary.  As  nothing  turned  upon  the  defendant's  real  in- 
tention, the  evidence  was  inadmissible  ;  for  it  is  perfectly  clear  that 
subsequent  libels  cannot  be  received  in  evidence,  with  a  view  to 
enhance  the  damages,  for  they  are  substantive  and  independent 
causes  of  action.  And  m  the  subsequent  case  of  Stuart  v.  Lovell 
(2/),  where  the  publication  declared  on  was  clearly  libellous,  Lord 
Ellenborough,  C.  J.  rejected  evidence  offered  of  the  publication 
of  subsequent  libels,  observing  that  such  evidence  would  certainly 
be  admissible  to  shew  the  intention  of  the  defendant,  Avere  it  all 
equivocal,  but  that  they  were  not  admissible  for  the 
[  *55  ]  *purpose  of  enhancing  the  damages  [1].  A  case,  there- 
fore, of  equivocal  intention,  as  where  the  question  de- 
pends on  the  existence  of  mahce  in  fact,  differs  widely  in  this  respect 
from  one  which  admits  of  no  doubt  on  the  subject ;  where  such  a 
doubt  exists,  and  where  the  material  question  in  the  cause  is, 
whether  the  defendant  was  justified  by  the  occasion,  or  acted  from 
express  malice,  it  seems,  in  principle,  that  any  circumstances  are 
admissible  which  can  elucidate  the  transaction  and  enable  the  jury 
correctly  to  conclude  whether  the  defendant  acted  fairly  and  honestly 
according  to  the  occasion,  or  mala  fide  and  vindictively,  for  the 
purpose  of  causing  evil  consequences. 

In  an  action  for  a  malicious  prosecution  of  an  indictment  for  per- 

(x)   Finnerty  v.   Tipper,   2   Camp.  C.  72.     His  Lordship  said  you  might  aa 
well  give  in  evidence  one  highway  robbeiy  on  the  trial  of  another. 
(3/)  2  Starkie's  C.  93. 

[1]  In  Thomas  v.  Croswell,  7  Johns,  R.  271,  Spencer,  J.  intimated  his  opi- 
nion that  subsequent  publications  were  not  admissible  in  evidence,  even  to  show 
the  quo  animo ;  though  he  deemed  it  unnecessary  to  the  right  adjudication  of 
that  case  to  settle  the  rule  of  law  upon  the  subject. 


MALICE.  ^ 

jury,  evidence  was  admitted  of  an  advertisement  published  by  the 
defendant  pending  the  prosecution,  although  an  information  had  been 
granted  for  publishing  that  advertisement  (.?). 

In  an  action  for  words  imputing  perjury,  the  plaintiff  was  allowed 
to  prove  that,  subsequently  to  the  speaking  of  the  words,  the  defen- 
dant had  preferred  an  indictment  against  him  (a).  But  in  such 
cases  the  jury  are  not  to  consider  the  effect  *of  such  evi- 
dence in  measuring  the  amount  of  the  damages,  but  [  *56  ] 
merely  as  a  circumstance  to  prove  malice  (6). 

It  was  once  doubted  whether,  in  admitting  evidence  of  this  na- 
ture, a  distinction  ought  not  to  be  made  between  words  not  action- 
able  in  themselves  and  those  which  are  so.  In  the  case  of  31ead  v. 
Daubigwj  (c.),  Lord  Kenyon  rejected  evidence  of  words  actionable 
in  themselves,  and  not  mentioned  in  the  declaration ;  but  his  lordship 
afterwards   changed  his  opinion,  and  admitted  such  evidence  in  a 

subsequent  case  (tZ)  •  , ,  t        i 

In  Russel  v.  3Iacquister  (0,  evidence  of  actionable  words  spoken 
after  the  time  of  those  laid  in  the  declaration,  was  objected  to,  on 
the  ground  that  if  such  words  were  taken  into  consideration,  by  the 
jury,  the  defendant  might  be  made  to  pay  a  double  compensation 
for  the  same  *injury,  since  another  action  might  be 
brought  for  the  words  last  spoken,  and  the  distinction  was  [  57  J 
taken  between  that  case  and  the  case  of  words  not  action- 
able  But  Lord  EUenborough,  C  J.  overruled  the  objection,  ob- 
serving, that  though  such  a  distinction  had  once  prevailed,  it  was  not 
founde°d  in  principle;  and  that,  although  no  evidence  can  be  given 

(2-)  Chambers  v.  Robinson,  Str.  691.  „        ,     ^  j    u 

(a)  Tate  v.  Humphreys,  2  Camp.  73,  n.  Cor.  Graham,  B.  and  afterwards  by 

the  court. 

(i)  2  Camp.  C.  73.  (c)  Peake's  C.  125, 

td)  Lee  ..Huson,Peake'sC.  166.  R.  v.  Pearce,  ib.  75.  In  the  case  of 
Warne  ..  Chadwell,  2  Starkie's  C.  457,  the  ^vords  (spoken  of  a  tradesman) 
were  "  He  is  a  bankrupt  and  cannot  pay  five  shillings  in  the  pound  ;  he  is  not 
fit  to 'be  trusted  ;  "  and  the  plaintiff  was  allowed  to  prove  that  on  another  oc- 
casion the  defendant  had  said  that  the  plaintiff  had  called  his  creditors  together 
and  had  offered  them  a  composition  of  five  shillings  in  the  pound. 

(e)  1  Camp.  49. 


57  CIVIL  REMEDY— EVIDENCE. 

of  any  special  damage  not  laid  in  the  declaration,  yet  that  any 
words,  or  any  act  of  the  defendant,  is  admissible,  to  shew  quo  animo 
he  spoke  the  words  which  are  the  subject  of  the  action  [1]. 

Upon  the  same  principle  (/),  where  a  libel  was  contained  in  a 
political  paper  published  weekly  by  the  defendant,  after  proof  that 
the  paper  in  question  had  been  purchased  at  the  defendant's  office, 
evidence  was  admitted  of  the  previous  sale  of  other  papers  with  tho 
same  title  at  the  same  office  ;  and  the  reason  of  admitting  it  was,  to 
shew  that  the  papers,  which  purported  to  be  weekly  publications  of 
public  transactions,  were  sold  deliberately,  and  vended  in  the 
regular  course  of  circulation ;  that  the  paper  containing  the  libel 
was  not  published  by  mistake,  but  vended  publicly,  deliberately,  and 

in  regular  transmission  for  public  perusal. 
[  *58  ]  In  an  action  where  any  words,  or  other  libels,  *not 

specified  in  the  declaration,  are  offered  in  evidence,  the 
defendant  is  at  liberty  to  prove  the  truth  of  the  charges  or  imputa- 
tions which  they  contain,  for  he  had  no  opportunity  of  pleading  the 
truth  in  justification  ((/). 

It  has  already  been  seen  that,  to  support  an  action  by  a  servant 
against  a  former  master,  for  slander  in  giving  his  character,  the 
plaintiff  must  prove  that  the  character  was  both  falsely  and  mali- 
ciously given  (Ji)  [2]. 

(/)  Plunkett  V.  Cobbett,  5  Esp.  C.  J36. 

(,ir)  See  Stuart  v.  Lovell,  2  Slarkie's  C.  93.  Warne  v.  Chadvvell,  2  Starkie's 
C.  457. 

(A)  Supra  v.  I.  p.  294. 

[1]  Similar  proof  was  received  in  Shock  v.  McChesney,  2  Yeates  473,  and 
in  Wallis  v.  Mease,  3  Binney  546.  So  also  evidence  of  the  repetition  of  the 
same  words  after  suit  brought  was  received  in  Kean  v.  McLaughlin,  Serg.  «Ss 
Rawle  469. 

[2]  From  the  decisions  made  on  the  subject  of  privileged  communications, 
since  the  publication  of  the  Second  English  edition  of  this  work,  the  following 
cases  have  been  selected. 

It  has  been  supposed  that  in  Fountain  v.  Boodle  (3  Queen's  Bench  R.  5 ;  2 
Gale  &  D.  455  S.  C.)  it  was  decided  that  proof  of  falsehood  in  a  characler  given 
of  a  servant  is  prima  facie  evidence  of  malice.  But  it  is  not  so.  The  case  was 
this  :  in  answer  to  an  inquiry  as  to  the  character  of  a  governess,  the  defendant 
wrote  a  letter  in  w'hich  she  said  "  I  parted  with  her  on  account  of  her  incompe- 
tency, and  not  being  lady-like,  nor  good-tempered."     The  governess  had  been 


MALICE.  S^ 

In  such  instances  the  plaintiff,  if  charged  with  dishonesty  and 
misconduct  in  the  defendant's  service,  is  at  liberty  to  prove  his 
good  character  and  conduct  in  former  services,  since  general  char- 
employed  by  the  defendant  for  upwards  of  a  year,  who  during  that  time  had  twice 
recommended  her  to  similar  situations.  The  governess  brought  an  action  for  the 
writin<roftheaboveletter,  and  gave  evidence  tending  to  negative  the  statements  m 

it  No%vidence  was  given  for  the  defendant.  On  the  trial  of  the  cause  the  Judge 
had  submitted  the  question  of  7nalice  to  the  jury,  by  directing  them  that  the  letter 
itself  and  the  facts  of  the  case  proved  that  the  writer  was  actuated  by  express 
malice  The  plaintiff  had  a  verdict,  and  on  a  motion  for  a  new  trial  Lord  Den- 
ham  C  J.  conceded  that  mere  falsehood  is  no  disproof  of  S^na^rfes,  and  that  the 
main  question  was  :  whether  there  was  amj  evilence  of  malice.  See  also  what 
was  said  by  Lord  Mansfield  on  this  subject  in  Lowry  v.  Aikenhead  post  p.  300 
Express  malice  may  be  collected  from  slight  proof,  or  even  f'«™/»;«f  ^^«f 
the  libel  itself.  Kelly  ..  Vartington  2  Nev.  &  M.  460  :  4  Barn.  &  Aid.  /GO  ; 
Wricrht  V.  Woodgate  2  C.  M.  &  R.  573  ;  1  Tyr.  &  G.  12. 

"A  communicanon  of  suspicion  of  felony  is  not  necessarily  restricted  to  an 
officer  of  justice  to  entitle  it  to  be  considered  as  privileged  ;  ^vhen  made  to  others 
it  is  for  a  jury  to  say  whether  the  party  making  it  acted  in  good  faUh.  Padmore 
V.  Lawrence,  11  Adol.  &  Ellis.  380. 

"  A  letter  from  a  son-in-law  to  his  mother-in-law,  volunteering  advice  respect- 
ing her  contemplated  marriage,  and  containing  imputations  upon  the  person 
Jxh  whom  she  is  about  to  contract  matrimony,  is  a  privileged  communication 
and  not  actionable  unless  malice  be  shown.  Such  communications  are  viewed 
liberally  by  juries."     Todd  v.  Hawkins,  8  Carr.  &  Payne  888  ;  2.  M.  &  Rob. 

20.  ' 

"  Where  a  party  under  full  belief,  warranted  by  circumstances,  that  his  debt- 
or had  committed  an  act  of  bankruptcy,  gave  notice  to  an  auctioneer,  not  to 
part  with  the  proceeds  of  certain  goods  of  the  debtor  sold  by  him,  it  was  held 
by  three  judges  to  one  that  the  communication  was  privileged,"  Blackham  v. 
Puffh,2Mann.Gr.  &Sc.  611. 

A  parly  communicated  lo  a  ship-owner  a  letter  representing  the  master  of  his 
ship  as  a  drunkard,  neglectful  of  his  duty,  and  endangering  the  lives  of  passen- 
gers, and  the  safety  of  ship  and  cargo.  This  communication  was  made  to  the  ship- 
owner in  good  faith  and  from  a  sense  of  duty,  hut  without  any  knowledge  of  the 
truth  of  the  charrres  other  than  that  derived  from  the  letter.  In  consequence  of  this 
communication  the  master  was  discharged  from  service,  and  he  brought  an  action 
acainst  the  party  receivinglhe  letter,  who  undertook  to  justify  but  failed  to  support 
his  plea  by  proof.  Having  however  also  pleaded  other  pleas  he  obtained  a  verdict 
under  the  charge  of  the  presiding  Judge  that  in  the  absence  of  malice  in  fact  the 
publication  of  the  letter  was  privileged.  The  plaintiff  obtained  a  rule  msi  for  a  new 
trial  for  misdirection.    The  case  was  twice  argued  ;  the  second  time  at  the  request 


58  CIVIL  REMEDY— EVIDENCE. 

acter  is  in  some  respects  in  issue ;  so  the  plaintiff  may  prove,  by 
the  evidence  of  other  servants  in  the  same  family,  that,  whilst  he 
remained  in  the  defendant's  service,  he  conducted  himself  well,  and 
that  no  complaints  of  the  nature  ascribed  to  him  by  the  defendant 
then  existed  (z).  And  the  tendency  and  bearing  of  this  evidence 
is  to  shew,  that  the  defendant  knew  that  the  character  which  he  gave 
was  false :  the  plain  reason  for  this  is,  that  the  knowledge  of  mis- 
conduct frequently  rests  with  the  defendant  himself; 
[  *59  ]  and,  being  unable  to  *prove  it  by  the  testimony  of  others, 
if  the  geseral  presumption  were  to  operate  against  him, 
he  would  be  left  without  defence.  To  prevent  such  inconvenience, 
the  law  requires  malice  to  be  proved  from  other  sources.  In  case, 
however,  the  plaintiff  should  be  able  expressly  to  prove  that  the 
defendant  was  aware  of  the  falsity,  no  further  proof  of  malice 
would  be  requisite  ;  nor,  indeed,  could  stronger  proof  of  it  be  ad- 
duced than  that  the  defendant  had  given  a  character  of  the  plaintiff 
injurious  to  his  reputation,  with  a  full  knowledge  that  it  was  untrue. 
The  circumstances  under  which  the  master  and  servant  parted, 
any  expressions  of  ill  will  uttered  by  the  former,  his  officiously  ac- 
quainting others  with  the  servant's  misconduct,  without  any  previous 
application  to  him  for  a  character,  are  alhfacts  which  are  proper  for 
the  consideration  of  a  jury  to  enable  them  to  form  their  opinion 
upon  the  question  of  intention. 

{i)  3  B,  &  P.  589. 
of  the  court.  After  the  second  arg:umentChief  J.  Tindal  andERLEJ.  held  that  the 
publication  was  a  privileged  communication  ;  Coltman  and  Creswell,  Justices, 
held  the  contrary,  and  insisted  that  the  defendant  was  a  volunteer  in  making  the 
communication  ;  that  no  relations  existed  between  him  and  the  ship-owner  justi- 
fying what  he  had  done,  he  was  neither  his  agent,  nor  was  there  any  relationship 
or  intimacy  existing  between  them  ;  nor  had  any  inquiry  been  made  as  to  the 
truth  of  the  charges.  The  Judges  who  held  the  communication  privileged, 
rested  their  opinions  chiefly  upon  the  ground  that  it  was  the  moral  duty  oi  the 
defendant  to  make  the  communication  ;  whilst  the  other  judges  argued  that  he 
defendant  was  under  no  legal  or  moral  duty  to  make  the  communication  ;  that 
the  moral  duty  of  the  defendant  not  to  publish  defamatory  charges  which  the 
did  not  know  to  be  irife,  was  quite  as  strong  as  the  duty  to  communicate  to  the 
ship-owner  that  which  he  believed  to  be  true.  The  Court  being  equally  divided, 
the  verdict  was  permitted  to  stand,  and  the  question  remains  res  integra.  Cox. 
head  r.  Richards,  10  Jurist  p.  984,  anno  1846. 


MALICE.  69 

The  plaintiff  cannot  in  ordinary  cases,  where  no  justification  is 
pleaded,  adduce  evidence  of  the  falsity  of  the  charge,  either  to  shew 
malice  or  to  enhance  the  damage  {k)  ;  for,  unless  the  defendant 
shew  that  he  was  justified  by  the  occasion,  malice  will  be  inferred, 
and  therefore  need  not  be  proved ;  and  in  the  absence  of  exoress  al- 
legations and  proof  of  the  plaintiff's  guilt,  his  innocence 
*will  be  presumed  {I).  It  has  even  been  said,  that  al-  [  *60  ] 
though  the  defendant  had  pleaded  a  justification,  charging 
the  plaintiff  with  having  stolen  money  from  the  defendant,  the  plain- 
tiff could  not  give  general  evidence  of  good  character  (m). 


{k)  Stuart  v.  Lovell,  2  Starkie's  C.  93. 

{I)  But  as  the  defendant's  knowledge  that  the  charge  was  untrue,  where  he 
sought  to  protect  himself  under  colour  of  the  occasion  of  speaking  or  writing, 
would  be  conclusive  evidence  to  overturn  the  defence,  it  would,  as  it  seems,  be 
admissible  for  that  purpose. 

(m)  Cornwall  v.  Richardson,  1  R.  &  M.  305.  Cor.  Abbott,  L.  C.  J.  It  ap- 
pears, however,  from  the  report  of  this  case  that  his  lordship  interposed  rather 
in  favor  of  the  plaintiff,  in  cautioning  his  counsel  that,  if  su2h  evidence  were 
received  it  would  afford  the  defendant  an  opportunity  of  giving  general  evidence  to 
the  contrary,  than  that  he  expressly  ruled  the  point.  The  plaintiff^,  it  seems,  where 
a  justification  is  pleaded,  is  at  liberty  to  go  into  the  whole  of  his  case,  and  there- 
fore may,  it  should  seem,  in  principle,  adduce  any  evidence  which  tends  to  prove 
it ;  but,  as  he  is  not  allowed  to  prove  a  particular  issue  by  piecemeal,  it  is  pro- 
bable that,  if  he  gave  evidence  of  good  character,  in  anticipation  of  the  defen- 
dant's case,  in  justification,  he  would  not  be  allowed  afterwards  to  go  into  a 
general  case,  by  way  of  reply  to  the  defendant's  evidence.  See  Pierrepoint  v. 
Shapland,  1  Car.  &  P.  448 ;  and  therefore,  where  there  is  reason  to  apprehend 
that  the  defendant  intends  to  rely  on  such  a  justification  in  evidence,  and  the 
plaintiff  has  proof  in  answer,  it  would  be  impolitic  and  dangerous  to  adduce 
any  part  of  it  by  way  of  anticipation.  In  the  case  of  King  v.  Waring  and  ux. 
5  Esp.  C.  13,  evidence  of  the  plaintiff's  previous  good  character,  as  a  servant, 
•was  admitted  ;  but  there  the  action  was  brought  against  a  former  mistress,  and 
the  alleged  libel  was  written  in  a  letter,  in  which  the  defendant,  professing  to 
give  the  plaintiff 's  character,  charged  her  with  dishonesty  and  misconduct; 
and,  in  such  a  case,  the  falsity  of  the  imputation  and  express  malice  areessential 
to  the  action.  The  general  rule  seems  to  be,  that  evidence  of  good  character 
is  not  receivable  until  it  has  been  impeached.  See  Slarkie  on  Evidence,  pt.  iv. 
367,  869,  917,  1310.  But  whilst  the  plea  of  justification  stands  on  the  record, 
the  plaintiff's  character  is,  as  it  seems,  in  question. 


61  CIVIL  REMEDY— EVIDENCE. 

*"VYhere   the  inference  of  malice  and  ill-will,  arising 
[  *61  ]     from  the  very  nature  of  the  words  or  libel,  is  not  repelled 

bj  the  occasion  and  circumstances  of  the  speaking  or 
publishing,  no  evidence  of  malice  is  of  course  expected  from  the 
plaintiff;  and  any  overt  act  of  publication  imposes  the  burthen  of 
explanation  upon  the  defendant,  since  it  -will  be  presumed  that  the 
party  knew  the  contents  of  that  which  he  published.  Thus  it  has 
been  seen,  that  a  bookseller  is,  in  the  first  instance  presumed  to 
know  the  contents  of  any  book  sold  at  his  shop,  and  on  proof  of  the 
sale,  the  contents  are  so  far  considered  to  have  been  fixed  upon  him, 
that  the  plaintiff  is  entitled  to  have  them  read  in  evidence.  So  far 
has  this  species  of  presumption  been  carried,  that  it  has  been  held 
that,  upon  an  indictment  for  sending  a  threatening  letter,  the  bare 
delivery  of  it,  though  sealed,  was  prima  facie  evidence  of  a  guilty 

knowledge  of  its  contents  (?i)'. 
[  *62   ]         *Where  the  special  damage  is  essential  to  the  action 

the  plaintifi"  must  prove  it  according  to  the  allegations  in 
his  declaration  (o).  It  must  be  shewn  that  the  damage  alleged 
and  proposed  to  be  proved,  was  the  natural  and  immediate  conse- 
quence of  the  slander.  The  general  rule  is,  that  no  evidence  of 
special  damage  is  admissible,  unless  it  be  averred  in  the  declaration, 
whether  special  damage  be  the  gist  of  the  action,  or  be  used  as 
matter  of  aggravation,  the  words  being  in  themselves  actionable  (p). 
But  it  has  been  said,  that  greater  certainty  is  requisite,  where  the 
special  damage  is  the  gist  of  the  action,  than  where  it  is  merely  laid 
by  way  of  aggravation  (^q). 

Where  the  damage  consists  in  loss  of  marriage,  the  plaintiff  can- 
not, without  specifying  the  individual  with  whom  the  marriage  would 
otherwise  have  been  contracted,  give  evidence  of  the  loss  (r).     So 

(n)  R.  V.  Girdwood,  Leach,  C.  C.  L.  169. 

io)  Supra -v.  I.  p.  439. 

(p)  B.  N.  P.  7.  1  Will.  Saund.  243.  n.  5.  It  was  formerly  held,  that  where 
special  damage  was  the  gist  of  the  action,  such  special  damage  might  be  given 
in  evidence,  although  the  particular  instances  were  not  specified,  otherwise 
where  the  words  were  actionable.     Str.  666. 

{q)  Per  Cur.  in  Whetherell  v.  Clerkson,  12  Mod.  597.  2  Lutw.  1295.  See 
Clarke  v.  Periam,  2  Atk.  33.     Supra  vol.  I.  p.  239. 

(r)  Barnes  v.  Prudling,  1  Sid.  396.  2  Vent.  4.  Hunt  v.  Jones,  Cro.  J,  499. 
12  Mod.  597. 


DAMAGE.  63 

if  he  allege  loss  of  marriage  with  M.  N.,  he  cannot  give 

•in  evidence  loss  of  marriage  with  any  other  person  (s).     [   '63   ] 

In  an  action  for  slander,  by  which  the  plainiifF  lias 
lost  his  customers,  he  cannot  give  in  evidence  the  bss  of  any  whoso 
names  are  not  specified  in  the  declaration  (f).  Bat  where  it  is  al- 
leged, as  special  damage,  that  the  plaintiff  was  prevented  from 
selling  his  estate,  and  that  the  bidding  was  prevented  by  the  act  of 
the  defendant,  the  fact  may  be  proved,  although  the  names  of  par- 
ticular bidders  are  not  specified  ;  for  the  loss  is  the  preventing  of 
the  sale  (m),  and  proof  that  persons  would  have  purchased  is  ev'i« 
dcnce  of  such  prevention. 

Where  the  plaintiff  alleged  that  he  had  been  employed,  from  time 
to  time,  to  preach  to  a  congregation  of  dissenters,  and  that,  by  rea- 
son of  the  words  the  persons  frequenting  the  chapel  had  wholly  re- 
fused to  permit  him  to  preach  there,  and  had  discontinued  to  givo 
him  the  gains  and  profits  Avhich  they  otherwise  would  have  given, 
the  court,  after  a  verdict  for  the  plaintiff,  on  motion  in  arrest  of 
judgment,  held  that  the  allegation  of  damage  was  suffi- 
cient ;  for  he  could  not  have  *staied  the  names  of  all  his  [  *64  ] 
con"'regation  (a;).  In  such  a  case,  therefore,  it  should 
seem  that  general  evidence  of  the  loss  of  emolument  would  be  ad- 
missible. 

Where  the  special  damage  was  alleged  to  be  the  loss  of  the  pro- 
fits of  several  performances  at  a  place  of  pubUc  amusement,  it  wa3 
held  that  the  witnesses  might  be  examined  generally  as  to  the  dimi- 
nution in  the  receipts,  but  that  they  could  not  be  asked  whether  par- 
ticular persons  had  not  given  up  their  boxes  (v/)  [a  a] . 

is)  Lord  Raym.  1007.  (0  8  T.  R,  130. 

(u)  See  Snead  v.  Badley,  Cro.  J.  397.     Sir  W.  Jones,  196. 

(r)   Hartley  v.  Herring,  8  T.  R.  130. 

(y)  Ashley  v.  Harrison,  1  Esp.  C.  43. 

[a  a]  The  declaration  alleged  that  certain  persons,  (naming  them),  who  would 
otherwise  have  employed  the  plaintiff,  refused  so  to  do;  the  proof  was,  that  by 
leason  of  the  speaking  of  the  words,  the  persons  named  would  liave  recommend- 
ed him  to  others,  which  others,  had  he  been  so  recommended,  would  have  em- 
ployed him  ;  held  ihat  the  declaration  was  not  supported  by  the  evidence,  for 
the  non-performance  arose  from  the  non-recommendation.  Strong  v.  Fortnan, 
2  C-  and  P.  592. 

Vol.  U.  69 


64  CIVIL  REMEDY— EVIDENCE. 

The  plaintiff  must  also  prove  that  the  damage  was  the  conse- 
quence of  the  defendant's  act. 

The  connection  between  the  wrong  done  by  the  defendant  and  the 
loss  to  the  plaintiff  is  matter  of  evidence. 

It  is  nevertheless  a  rule  of  law  that  the  damage  must  be  the  nat- 
ural and  immediate  consequence  of  the  wrongful  act.  The  defend- 
ant asserted  that  the  plaintiff  had  cut  bis  master's  cordage,  upon 
whiclvthe  master  had  discharged  the  plaintiff  from  his  service,  al- 
though he  was  under  an  engagement  to  employ  him  for  a  term ;  but 
the  court  held  that  the  discharge  was  not  a  ground  of 
[  *65  ]  action,  since  it  was  not  the  natural  consequence  *of  the 
words  spoken  (z)  ;  the  damage  must  be  attributable 
wholly  to  the  words. 

Where  the  reason  which  a  party  assigned  for  not  employing  the 
plaintiff  was  founded  jparthj  on  the  defendant's  words  and  partly 
on  the  circumstance  that  he  had  been  previously  discharged  by  an- 
other master,  it  was  held  that  no  action  was  maintainable  {a). 
Where  the  refusal  of  a  third  person  io  deal  with  the  plaintiff  in  the 
way  of  his  trade,  is  alleged  as  special  damages,  evidence  is  not  ad- 
missible of  the  reason  given  by  the  customer  to  the  plaintiff's  agent 
for  ceasing  to  deal ;  the  customer  himself  must  be  called  to  prove 
his  motive  (Ji). 

Where  the  defendant  libelled  a  performer  at  a  place  of  public 
entertainment,  in  consequence  of  which  she  refused  to  sing,  and  the 
plaintiff  alleged,  as  special  damage,  that  his  oratorios  had,  in  coT^se- 
quence,  been  more  thinly  attended,  it  was  held  by  the 
[  *66  ]  judge,  on  the  trial,  that  the  injury  was  too  remote  (e), 
and  that  it  did  not  *appear  but  that  the  refusal  to  per- 
form arose  from  caprice  or  indolence. 

The  plaintiff,  having  once  recovered  damages,  cannot  afterwards 

{z)  Vicars  v.  Wilcox,  8  East,  1 ;  and  see  Morris  v.  Langdale,  2  B.  &  P.  184, 
where  it  was  doubled  whether  the  occasioning  a  third  person  to  breali  his  con- 
tract with  the  plaintiff  was  a  sufficient  special  damage,  since  the  plaintiff  might 
obtain  satisfaction,  by  action,  for  the  breach  of  contract;  and  vide  supra  vol.  I. 
p.  204.  (a)   8  East,  1. 

(6)  Tilk  V.  Parsons,  2  C  &  P.  201.    Cor.  Best,  C.  J 

(c)  Lord  Kenyon,  Ashley  v.  Harrison,  1  Esp.  C  48. 


DAMAGE.  6b 

recover  any  ulterior  compensation  for  any  loss  resulting  from  the 

same  words  (c) . 

It  has  been  said  that  the  plaintiff,  in  an  action  for  a  malicious 
prosecution,  may  give  in  evidence  the  circumstances  of  the  defend- 
ant, in  order  to  increase  the  damages.  The  principle,  however, 
upon  which  such  evidence  is  allowable,  is  not  very  obvious,  and 
B3arcely  can  be  warranted  unless  the  situation  and  rank  of  the  de- 
fendant have  affected  the  quantum  of  prejudice  sustained  by  the 

Where  the  words  or  libel  are  in  themselves  actionable,  no  proof  of 
special  damage  is  necessary,  although  such  si)ecial  damage  should  be 
alleged.  But  the  plaintiff  cannot  in  that  case,  any  more  than  where 
the°pecial  damage  is  the  gist  of  the  action,  give  evidence  of  any 
consequential  damage,  which  is  not  alleged  in  the  declaration. 

Where,  in  addition  to  the  general  issue,  issues  are  jomed  on  affir- 
mative pleas  of  justification,  the  plaintiff's  counsel  may  either  in  iho 
first  instance  rebut  the  justification,  or  he  may  wait  till 
the  defendant  has  offered  affirmative  evidence  *in  proof       [  *67  ] 
of  his  justification,  but  he  cannot  divide  his  proof  by  giv- 
ing' part  in  evidence  in  the  first  instance  and  part  afterwards  (d). 

"where  the  defendant  has  suffered  judgment  by  default,  it  is  not 
incumbent  on  the  plaintiff  to  adduce  any  evidence  on  the  execution 
of  the  writ  of  inquiry  to  assess  the  damages. 

The  proofs  in  an  action  for  a  malicious  prosecution  are,  1st,  Of 
the  prosecution  ;  2ndly,  Of  the  defendant's  malice,  and  the  want  of 
probable  cause  ;  3dly,  of  probable  cause  ;  Of  damage  to  the  plain- 

'  ist.  A  prosecution  by  the  defendant,  from  which  the  plaintiff  has 
been  discharged.  If  the  prosecution  was  in  the  King's  Bench,  at 
the  assizes,  or  quarter  sessions,  the  fact  of  prosecution  and  acquittal 

fd)  Brown..  Murray,  IR.&M.  251.  Sylvester  ..  Hall,  ib.  SeeReesr. 
Smith,  2  Starkie's  C.  31.  Delauny  ..  Mitchell,  1  Starkie's  C  439.  Spooner 
t,.  Gardiner.  R.  &  M.  86.     Pierrepoint  v.  Shapland,  1  Carr.  &  P.  448. 

(e)  See  Clayton  v.  Nelson,  B.  N.  P-  13.  Kirk  v.  French  1  Esp^  C.  81. 
Morrison  v.  Kelly.  1  Bl.  R.  385.  Starkie  on  Evidence  tit.  Malicious  Prosec^- 
tion. 


67  CIVIL  REMEDY— EVIDENCE. 

must  be  proved  in  the  usual  way,  by  the  production  of  the  record, 
or  proof  of  an  examined  copy  of  it  (e).     It  is  no  objection  to  this 
proof,  that  no  order  of  court,  or  fiat  of  the  attorney  gen- 
[  *G8  ]      eral,  aUowini^  a  copy  of  it  to  the  party  acquitted  in  a  *caso 
of  felony,  is  proved  (/)•     It  must  appear  that  the  plain- 
tiff was  acquitted  of  the   charge  (^)  ;  it  is  not  sufficient  to  prove 
that  the  proceeding  was  stayed  by  the  nolle  prosequi  of  the  attor- 
ney-general (h) ',  otherwise  if  he  had  pleaded  not  guilty,  and  iho 
attorney  general  had  confessed  it  (i)  ;  and  it  is  sufficient 
[  *G9  ]       that  the  *party  was  acquitted  upon  a  defect  in  the  indict- 
ment (k). 
Some  proof  ought  to  be  given  of  identity  of  the  plaintiff  with 
the  party  prosecuted.     In  order  to  prove  that  the  defendant  was 
the  prosecutor,  it  may  be  desirable  to  be  prepared  with  the  original 
bill  of  indictment,  for  although  the  names  of  the  witnesses  on  the 
back  of  the  bill  are  no  part  of  the  record,  it  is  evidence  that  they 

(/)  Lepgatt  V.  Tollervey,  14  East.  302.  Jordan  v.  Lewis,  2  Sir.  1122. 
And  Ford's  M.  S.  The  case  of  Legjjalt  y.  Tollervey,  above  cited,  overruled 
that  of  Giiirin  v.  Phillips,  Monmouih  summer  assizes,  1763,  where  Adams,  B. 
held,  that  a  copy  of  ihe  record  in  felony  ought  not  to  be  received,  unless  it  had 
been  ordered  by  the  judge  (see  Selw.  N.  P.  1063).  But  he  held  that  in  all  ca- 
ses of  indictments  for  misdemeanors,  a  defendant  is  entitled  to  a  copy  of  the 
record.  And  the  same  distinction  was  taken  by  Lord  Mansfield,  C.  J.  in  Mor- 
rison V.  Kelly,  1  Bl.  R.  385,  where  the  prosecution,  however,  had  been  for  a 
misdemeanor.  Among  the  orders  and  directions  to  be  observed  by  justices  of 
the  peace,  at  the  Old  Bailey,  2  G.  c.  2.  prefixed  to  Kelyng's  Crown  Cases,  is 
one  which  directs  "  that  no  copy  of  any  indictment  for  felony  be  given  without 
special  order,  or  motiim  made  in  the  open  court,  at  the  general  goal  delivery  ; 
because  the  late  frequency  of  actions  against  prosecutors,  which  cannot  be  with- 
out co|>ies  of  the  iiidctments,  deterreth  peo^jle  from  prosecuting  for  the  kin"' 
upoa  just  occasions." 

[g)  Hunter  v.  French,  Willes,  517, 

(/))  Goddard  v.  S.niih,  G  Mod.  262  ;  for,  notwithstanding  the  no//c  proseyT/i, 
fresh  process  may  be  sued  out  upon  the  indictment.  Ibid,  per  Ld.  Holt;  but  it 
■was  said  that  there  had  been  no  instance  of  any  further  proceediii'T  after  a  7iotle 
prosequi.  Ibid.  S.  C. Salic.  21.  Note  that  the  declaration  alleged  an  acquittal, 
but  the  court  held  that  the  entry  of  a  nolle  prosequi,  did  not  amount  to  an  acquit- 
^al.  (i)  Ibid. 

(A)  Wicks  V  Fentham,  4  T.  R.  247. 


MALICIOUS  PROSECUTION.  69 

,vere  sworn  to  the  bill  (/)  ;  but  it  may  be  proved  that  the  defendant 
^vas  a  ^^itness,  Aviihout  producing  the  bill  (m)  ;  ani  the  indorsement 
of  ilie  party's  na'Be  as  a  ^vitne33  on  the  bill  is  no  evidence  that  he 
^vasthe   prosecutor  (n).     Where   the  defendant  merely 
acted  as  a  magistrate,  the  'proof  of  his  name  on  the  back       [  *70  ] 
of  the  indictment,  as  prosecutor,  Avill  not  render  him  hable 
(o).     The  proper  evidence  to  establish  this  fact  is,  that  the  defend- 
ant'employed  an  attorney  or  agent  to  conduct  the  prosecution  ;  that 
he  -ave  instructions  concerning  it ;  paid  the  expenses  ;  procured  the 
attendance  of  Avitnesses,  or  was  otherwise  active  in  forwardmg  the 
prosecution.     It  has  been  said,  that  a  grand  juror  may  be  called  to 
prove  that  the  defendant  was  the   prosecutor  (p)  ;  this,  however, 
appears  to  be  doubtful.  _ 

Where  the  substance  only  of  the  charge  contained  in  the  judg- 
ment or  information  before  a  magistrate  is  alleged,  it  seems  that  a 
variance  will  not  be  material,   unless  the  char-e  itself  be  differ- 

ent (o).  '  L    L 

If  the  proceeding  was  by  preferring  a  charge  before  a  magistrate, 

(/)  Per  Holt.  C.  J.  in  Johnson  &Vx.v.  Browning,  G  Mod,  216. 

m)  Ihid.  per  Ld.  Holt.  .     .  , 

(n)  1  Vent  47  B  N.  P.  14.  It  is  a  question  of  fact  for  the  jury  to  deter- 
mine who  was  the  prosecutor.  Ld.  Ellenhon.ugh,  C.  J.  in  R.  .-  Cromwell,  4: 
M  &  S  '07,  observed,  that  "  in  an  action  for  a  maUcious  prosecution,  if  the 
prosecutor  be  kept  out  of  sight,  it  sometimes  becomes  a  point  of  very  sub.la 
evidence  to  determine  who  is  the  prosecutor  ;  but  zJ  cerium  est.quod  cerium  rcJdi 
potest;  and  it  is  a  question  to  be  ascertained  by  inquiry  and  evidence.  bee 
also  R.  ..  Smith,  1  Burr.  54.  R.  ..  Ket.levvorth,  5  T.  R.  :.3,  in  neuher  of 
^^•hich  was  the  prosecutor's  name  in  the  indictment.  Sometimes  it  is  the 
business  of  the  court  to  make  the  inquiry.     lb.  and  R.  v.  lucledon,  1  M.  &  b. 

268. 

(o)  Girlington  v.  Phfield,  1  Vent.  47.  _ 

t«)  Svkes  ..  Dunbar,  Selw.  N.  P.  1066.  7th  ed.  This  evidence  is  sad  to 
have  been  admitted  by  Ld.  Kenyon,  on  the  ground  that  this  *vas  a  question  of 
fact  the  disclosure  of  which  did  not  involve  a  breach  of  the  grand  juryman  s 
oath-  but  yet  it  seems,  that  eiiher  the  witness  must  disclose  the  u  hole  that 
passed  orthe  defendant  would  be  precluded  from  ascertaining,  upon  cross-exam- 
inati..n,  the  grounds  from  which  ihe  witness  drew  his  general  inference  that  the 
defendant  was  the  prosecutor. 
{q)  Supra  vol.  I.  p-  446. 


70  CIVIL  REMEDY— EVIDENCE. 

the  magistrate  or  his  clerk  should  be  served  with  a  sub- 
[  ""^l  ]  poena  duces  tecum,  to  *produce  the  proceedings  (r).  If 
the  information  vras  laid  by  the  defendant,  his  taking  the 
oath,  an  dhand  writing,  should  be  proved,  as  also  the  issuing  the  war- 
rant to  the  constable,  &c.  ;  the  warrant  must  also  be  produced  and 
proved,  andevidence  must  be  given  of  the  apprehension  and  detentioa 
of  the  plaintiflf  under  the  warrant,  and  his  ultimate  discharge  must 
also  be  shown. 

Where  evidence  was  given  of  the  loss  of  the  warrant,  parol  evi- 
dence of  its  contents  was  admitted  without  proof  of  the  informa- 
tion (s). 

2dl_y.  Malice  and  the  want  of  probable  cause. — If  a  party  prose- 
cute another  on  a  criminal  charge,  it  is  a  rule  of  law,  which  seem3 
to  be  founded  upon  principles  of  policy  and  convenience,  that  the 
prosecutor  shall  be  protected  in  so  doing,  however  ma- 
[  *72  ]     licious  his  private  motives  *may  have  been,  provided  he- 
had  probable  cause  (^)  for  preferring  the  charge. 

(r)  Wliere  the  declaration  alleged  an  information  before  a  magistrate,  and 
evidence  was  offt-red  of  an  admission  by  the  defendant  that  he  had  laid  an  in- 
formation before  a  magistrate,  and  it  appeared  from  the  evidence  of  the  magis- 
trate's clerk,  that  the  practice  was  to  take  such  infoimation  in  writing,  but  no 
evidence  was  given  of  the  information  itself,  the  plaintiff  was  nonsuited.  Smith 
V.  Walker,  Cor.  Bayley,  J.  York  summer  assizes,  1821. 

(s)  Newsam  v.  Carr,  2  Slaikie's  C.  70.  Cor.  Wood,  B.  Note,  it  did  not 
appear  that  any  information  had  been  taken,  and  yet  it  seems  that  it  is  to  be  pre- 
sumed in  a  case  of  felony  that  one  has  been  taken. 

(t)  1  T.  R,  520.  1  Salk.  14,  15,  21;  5 Mod.  394,405.  iVent.  86.  Carth.  415. 
Where  a  party  robbed  or  injured  merely  states  actual  facts  to  a  magistrate,  on 
which  the  latter  acts  according  to  his  own  discretion,  the  action  it  seems  is  not 
maintainable.  The  complainant  cannot,  in  propriety,  be  said  to  be  the  prose- 
cutor of  the  person  against  whom  the  magistrate  may  think  fit  to  issue  his  war- 
rant; and  whether  there  be  or  be  not  probable  cause  for  issuing  the  warrant, 
there  was,  at  all  events,  probable  cause  for  making  the  statement,  and  no  malice 
can  be  inferred  ftom  a  mere  statement  of  facts  according  to  the  truth.  Where 
the  defendant  went  before  a  magistrate,  and  stated  the  fact  of  his  having  lost  a 
bill  of  exchange,  and  the  magistrate's  clerk  stated  the  substance,  but  added  that 
the  plaintiff  had  feloniously  stolen  the  bill ;  there  being  no  evidence  of  malice 
on  the  part  of  the  defendant,  it  was  held  that  the  plaintiff  had  been  poperly 
nonsuited.     Cohen  v.  Morgan,  6  D.  &  R.  8. 


MALICIOUS  PROSECtJTION.  72 

This  protection  appears  to  be  not  only  one  of  convenience,  but  of 
justice,  or  even  of  necessity,  when  it  is  considered  how  often  it  hap- 
pens that  the  facts  upon  which  a  prosecution  is  propeily  founded  aio 
con6ned  to  the  knowledge  of  the  prosecutor  alone  ;  and  if  this  proof 
■were  not  to  be  required  on  the  part  of  the  plaintiff,  every  prosecutor 
■would  in  such  a  case  be  left  exposed  to  an  action,  against  which  he 
might  have  no  defence  (m),  if  mahce  were  to  be  inferred  from  the 
apparent  want  of  probable  cause. 

*It  has  already  been,  seen,  that  what  will  amount  to  probable 
cause,  may  be  either  a  question  of  law,  to  be  decided  by 
the  court  on  the  particular  facts,  as  found  by  the  jury,  or     [  *73  ] 
may  be  a  conclusion  or  inference  of  fact  to  be  drawn  by 
the  jury  (a:;).     Evidence  of  the  most  express  mahce  -will  not   dis- 
pense with  proof  of  the  absence  of  probable  cause  (^). 

Where,  upon  an  indictment  for  a  malicious  prosecution  for  per- 
jury, it  appeared  that  part  of  the  affidavit  on  which  perjury  had  been 
assigned  had  been  faLely  sworn,  but  that  there  was  no  probable 
cause  for  some  assignments  of  peijury,  *on  some  of  the 
transactions  contained  in  the  affidavit,  it  was  held  that  the  [  *74  ] 
action  was  maintainable  (?/),  for  there  being  no  probable 
cause  for  some  of  the  charges  in  the  indictment,  it  was  preferred 
■wiih  probable  cause  (2). 

(m)  See  Ld.  Kenyon's  observations  in  Sykes  v.  Dunbar,  1  Camp.  202,  in  note ; 
and  in  Smiih  v.  Macdonald,  3  Esp.  C.  6.  These  reasons  do  not,  as  has  been 
seen,  apply  to  a  case  where  a  parly  makes  an  extra- judicial  charge  against  an- 
other. 

(x)  Supra  vol.  I.  p,  279.  "Where  a  felony  has  been  committed,  though  not 
by  the  plaintiff',  a  private  person  may  justify  not  only  a  piosecution,  but  even  an 
actual  arrest,  if  he  acted  on  fair  and  reasonable  grounds  of  suspicion.  But  in  an 
action  of  trespass,  it  would  be  necessary  that  the  defendant  (not  being  a  peace 
officer,)  should  plead  specially  the  grounds  on  which  he  acted.  See  Mure  ». 
Kaye,  4  Taunt.  34.  M'Cloughan  v.  Clayton,  2  Starkie's  C.  445.  Haw.  b.  2,  c.  12. 
s.  15.  In  such  cases,  therefore,  it  may  be  a  question  of  law  for  the  court,  whe- 
ther the  circumstances  were  sufficient  to  justify  an  arrest.  No  one  who  did  not 
himself  believe,  on  facts  within  his  knowledge,  that  the  parly  was  guilty,  would 
be  justified  in  making  an  arrest.  Haw.  b.  2,  c  12,  s  15.  Sir  Anthony  Ashley's 
case,  12  Co.  92. 

(y)  Turner  v.  Turner,  1  Gow.  50. 

(y)  Reed  v.  Taylor,  4  Taunt.  616. 

(«)  Per  Gibbs,  C.  J.     Reed  v.  Taylor,  4  Taunt.  616 


75  CIVIL  REMEDY— EVIDENCE. 

The  fact  of  malice,  which  i3  a  question  for  the  jury  (a),  is 

[  *75  ]      usually  ii.fcrred  from  the  want  of  any  'probable  cause  lor 

the  prosecution  {h).     No  evidence  of  malice  can  be  more 

cogent  than  the  proof  that  ihe  defomlant  knciv  that  the  plaintiff  ^Ya3 

innocent  [  a  a  ]. 

It  is  invariably  necessary,  in  an  action  of  this  nature,  to  give 

(a)  See  Johnstone  v.  Sutton,  1  T.  R-  543.  Yet  there  may  be  cases  so  cir- 
cumstanced, thai  though  the  courts  might  not  go  so  far  as  to  infer  malice  in  point 
oflnw,  wiihout  the  aid  of  a  jury,  yet  they  would  leave  it  lo  the  jury  to  imply 
malice.  Where  a  bank  inspector,  in  the  absence  of  circumstances  which  would 
justify  sus^picion,  charged  the  holder  of  a  forged  bank-note,  which  he  had  re- 
lused  to  give  up  to  the  inspector,  with  a  felonious  possessidn  of  the  note,  Ld.  El- 
lenboroiigh  said,  that  lo  press  for  a  commilment,  under  such  circumstances,  was 
such  a  crassa  i  g  nor  and  a,  xhal  it  amounted  to  malice  Bronkes  u.  Warwick,  3 
Slavkie's  C.  389.  See  also  Isaacs  v.  Brand,  2  Starkie's  C  107,  Supra,  vol.  I. 
p.  282.  in  the  note.  The  defendant  had  held  the  plaintiff  to  bail,  as  adminis- 
tratrix, for  a  debt  due  from  the  estate  ;  and  upon  the  trial  of  the  action,  for  ma- 
liciously hdlding  to  bail,  the  plaintiff  relied  wholly  on  the  mere  fact  of  her  hav- 
ing been  held  to  bail,  when  she  was  not  liable  to  arrest,  and  gave  no  extiinsic 
evirience  of  malice.  The  jury  having  found  a  verdict  for  the  plaintiff,  with  five 
shillings  damages,  the  court  upon  a  motion  for  a  ne-.v  trial,  doubted  whether  the 
very  fact  of  holding  the  party  to  bail,  under  such  circumstances,  was  not  evi- 
dence from  which  malice  was  to  be  !OT;j/2e^,  and  refused  to  disturb  the  verdict, 
Fletcher  v.  Webb,  11  Price  381. 

(h)  Incledon  v.  Berry,  1  Camp.  403.  Saville  v.  Roberts,  1  Salk,  14.  Ld. 
Ray.  374. 

[a  a]  Where  an  indictment  had  been  preferred  against  the  plaintiff  and  an- 
other, and  a  copy  had  been  obtained  on  behalf  of  the  latter  only,  it  was  held 
that  the  plaintiff  was  entitled  to  use  it  in  evidence,  and  the  court  would  not  in- 
quire by  what  means  it  had  been  obtained.  It  was  also  held,  that  misconduct, 
on  the  part  of  the  defendant  towards  the  other  parly  indicted  was  evidence,  as 
part  of  the  res  gestae,  and  as  tending  to  show  the  malice  of  the  defendant.  The 
court  also  held,  that  it  was  no  bar  to  the  plaintiff's  recovering  that  a  rule  for  a 
criminal  information  had  been  oblamed,  but  not  proceeded  in.  Caddy  v.  Barlow 
1  M.  &  R.  275. 

A  bill  of  exchange  was  addressed  to  Mr.  J.  Spencer,  No.  3,  Sidmouth-Street, 
and  purported  to  be  accepted  by  him  ;  the  plaintiff's  name  was  J.  Spence,  and 
he  resided  at  No.  3,  Sidmouth  Street,  tint  the  acceptance  was  not  his  ;  and  when 
the  bill  was  at  maturity,  he  denied  the  acceptance,  but  the  fact  of  denial  was 
not  communicated  to  the  defendant,  the  holder  of  the  bill.  The  defendant  hav- 
ing arrested  the  plaintiff,  it  was  held,  in  an  action  for  malicious  arrest,  that  there 
was  no  evidence  of  malice,  and  the  plaintiff  was  nonsuited-  Spence  "•  Jacob, 
1  M.  &  M.  180 


MALICIOUS  PROSECUTION.  75 

some  positive  evidence,  arising  out  of  the  circumstances  of  the  pros- 
ecution, to  show  that  it  was  groundless  ;  it  is  insufficient  to  prove  a 
mere  acquittal,  or  even  to  prove  any  ne-lect  or  omission  on  the 
part  of  the  defendant  to  make  good  his  charge,  for,  as  was  observed 
ill  the  case  o^  Purcell  v.  JSIacnamara  (c),the  prosecution  may  have 
been  commenced  and  abandoned  from  the  purest  and  most  laudable 
motives. 

Thus  it  is  not  enough  to  show,  that  on  an  indictment  of  the  [.Iain- 
tiff  by  the  defendant  for  perjury,  the  former  was  acquitted  upon 
the  trial,  on  failure  of  the  prosecutor's  appearance  when  called  (c?)  ; 
even  although  the  facts  lay  within  the  defendant's  know- 
ledge, who,  had  there  been  *ihe  least  foundation  for  the  pros-  [  *76  ] 
ecution  might  have  proved  it  (e). 

Or  to  prove  that  the  bill  was  thrown  out  by  the  grand  jury  (/), 

(c)  Puicell  V.  Macnamara,  9  East.  361.  Sykes  v.  Dunbar,  ciied  9  East.  363, 
in  the  note  where  Ld.  Kenyon  ruled,  that  it  was  not  sufBcient  for  the  plaintiff  to 
show  his  acquittal,  without  going  farther  and  giving  evidence  of  malice  in  the 
defendant. 

id)  ]bid. 

(e)  The  circumstance,  that  in  the  particular  case  the  facts  are  peculiarly  with- 
in the  knowledge  of  the  prosecutor,  and  the  proof  of  them  within  his  reach, 
would  clearly  be  an  insufficient  reason  for  depailing  from  the  geneial  rule, 
which  seems  to  be  founded  partly  on  the  difEculty  under  which  a  defendant 
must  often  labour,  in  proving  by  other  witnesses  the  cause  which  he  had  for  in- 
stituting the  prosecution.  In  Buller's  Nisi  Prius  14,  it  is  laid  down,  that  where 
the  facts  are  in  the  knowledge  of  the  defendant  himself,  he  must  show  a  proba- 
ble cause,  though  the  indictment  has  been  found  by  a  grand  jury,  or  the  plaintiff 
shall  recover,  without  proof  of  express  malice ;  for  this  position,  the  case  of 
Parrott  c.  Fishwick,  Lond.  Sitt.  after  Trin.  T.  1772,  is  referred  to  ;  but  from 
the  note  of  this  case,  given  9  East.  362,  it  appears  that  where  a  defendant  had 
been  acquitted  by  verdict,  Ld.  Mansfield,  in  summing  up,  said,  "That  it  vvas 
not  necessary  to  prove  express  malice ;  for  if  it  appeared  that  there  was  no 
probable  cause,  that  was  sufficient  to  prove  implied  malice,  which  was  all  that 
was  necessary  to  be  proved  to  support  this  action.  For  in  that  case  all  the  facts 
lay  within  the  defendant's  own  knowledge  ;  and  if  there  were  the  least  fi)unda- 
tion  for  the  prosecution,  it  was  in  his  power,  and  incumbent  on  him  to  prove  it." 
Verdict  for  the  plaintiff,  damages  ^£50.  It  is  observed  by  Mr.  East,  in  the 
note  referred  to,  that  it  was  perfectly  consistent  with  the  summing  up,  that  the 
plaintiff  had  given  prima  facie  evidence  to  negative  any  probable  cause. 
(/)  Byne  v.  Moore,  Marsh  12. 

Vol.  II.  TO 


77  CIVIL  REMEDY— EVIDENCE. 

[  *77  ]       or  that  the  defendant,  after  *charging  the   plaintiff  on 
oath  with  an  assault,  omitted  to  prefer  an  indictment  (^). 

Where  the  prosecutor  has  abandoned  the  prosecution  without 
giving  any  evidence,  and  it  is  proved  that  the  defendant  was  actuat- 
ed by  malicious  motives  in  preferring  the  bill,  although  some  evidence 
must  still  be  given  of  the  want  of  probable  cause,  slight  evidence 
will  be  sufficient  (7i). 

In  an  action  against  a  magistrate  for  a  malicious  conviction,  the 
question  is  not  whether  there  was  probable  cause  in  fact  for  convict- 
ing, but  whether  he  had  any  probable  cause  for  convicting,  and  for 
this  purpose,  what  passed  before  him  upon  the  hearing  is  not  only 
proper,  but  essential  evidence  with  a  view  to  the  question  of  ma- 
lice (i). 

The  proof  of  malice  in  this  action  (as  has  already  been  observed), 
usually  results  from  the  want  of  probable  cause,  which  when  once 
established  affords  the  strongest  presumption  of  malice  (y).  Evi- 
dence as  to  the  conduct  of  the  defendant  in  the  course  of  the  tran-- 
saction,  his  declarations  on  the  subject,  and  any  forwardness  and 
activity  in  exposing  the  plaintiff  by  a  publication  of 
[  "78  ]  *the  proceedings,  is  properly  adduced  to  prove  malice  Qk). 
It  seems  also,  that  the  plaintiflf  may  give  in  evidence  the 
proof  adduced  by  defendant  on  the  trial  of  the  charge  (0-  So  he 
may  give  in  evidence  publications  by  the  defendant  on  the  subject 
of  the  charge  (w). 

Where  the  defendant,  a  bank  inspector,  had  procured  the  plaintiflf, 
a  tradesman  to  be  taken  into  custody  on  a  charge  of  having  in  his 
possession  a  forged  bank  note,  without  legal  excuse,  because  he  had 
refused,  after  paying  the  amount  to  the  person  to  whom  he  had  paid 

(g)  Wallace  v.  Alpine,  2  Camp.  204. 

{h)  Per  Le  Blanc,  J.  Incledon  v.  Berry,  1  Camp.  203,  in  the  note. 

(i)  Burley  v.  Bethune,  5  Taunt,  580.  {j)  See  5  Taunt.  583. 

(yl)Str.  691.  (/)  B.  N.  P.  13.  14. 

(m)  Chambers  v.  Robinson,  Str.  691,  where  the  plaintiff  gave  in  evidence  an 
advertisement  published  by  the  defendant,  pending  the  prosecution  of  an  indict- 
ment for  perjury,  though  an  information  had  been  granted;  but  the  chief  justice 
informed  the  jury  that  they  were  not  to  consider  it  in  damages,  but  only  as  a 
circumstance  of  malice. 


MALICIOUS  PROSECUTION.  78 

it  away,  to  deliver  it  up  to  the  inspector,  Ld.  Ellenborough  held 
that  the  pressing  a  commitment,  under  such  circumstances,  wassuch 
crassa  ignorantia  that  it  amounted  to  malice  (w). 

*The  defendant  may  give  in  evidence  any  facts  which  show  that 
he  had  prolaUe  cause  for  prosecuting,  and  that  he  acted 
bona  fide  upon  that  ground  of  suspicion.     It  is  no  answer     [  *1^  J 
to  the  action  that  the  defendant  acted  upon  the  opinion 
of  counsel,  if  the  statement  of  facts  upon  which  the  opinion  was 
founded  was  incorrect,  or  the  opinion  itself  unwarranted  (o)- 

If  it  appear  that  the  jury,  upon  the  trial  of  the  plaintiff,  enter- 
tained doubts  upon  the  evidence,  and  deliberated  as  to  his  gmlt 
after  the  case  was  concluded,  the  fact  is,  it  seems,  evidence  of  a 

probable  cause  Qp).  . ,        ,       i, 

-It  is  obviously  of  importance  to  prove  that  a  felony  has  been 
committed  (?),   and    to    be    prepared    with    proof   of    such  cir- 

(n)  Brookes  ..Warwick,  2   Starkie's  C.  389.    The  plaintiff  had   taken  the 
note  in  the  usual  course  of  business,  and  paid  it  in  the  usual  course  to  B.     The 
note  beina  stopped  at  the  bank  was  stamped  as  a  forgery,  and  brought  by  an  m- 
p  ctor  to  the  p  aintiff.     The  plaintiff  pa.d  the  amount  to  B-  and  refused  to  give 
Tup   o  the  inspector,  insisting  on  his  right  to  retain  it.     The  mspector.  wuhou^ 
any  ground  for  suspicion,  charged  the  plaintiff  with  feloniously  havmg  the  no  e 
in  hi  possession,  without  lawful    excuse.     The  case  was  very  pertinaciously 
Issed  on  the  part  of  the  defendant,  although  Ld.  Ellenborough  had,  early  in 
'he  cause,  expressed  a  strong  opinion  on  the  subject,  aud  left  it  to  the  jury  upon 
the  ground  of  malice.     The  jury  found  fur  the  plaintiff,  damages  £50. 
lo\  Hewlett  v.  Crutchley,  5  Taunt.  277.-Supra  vol.  I.  p.  281,  note 
L    In  Smith..Macdonald,3  Esp.  C.  7,  Ld.  Kenyon  held,  that  if  the  jury 
paus  d  before  they  acquitted  the  plaintiff  upon  his  trial  for  the  offence,  he  should 
hold  that  there  was  probable  cause  for  the  prosecution.    It  does  not  appear, 
^vhether  in  that  case  the  evidence   rested  upon  the  testimony  of  the  prosecutor, 
the  defendant  in  the  action.   It  is  also  to  be  observed,  that  there  was  no  evidence 
o  negative  probable  cause,  a  circumstance  in  itself  sufficient  to  warrant  a  non- 
suit-    See  also,  Lilnal  v.  Smallman,  Selw.  946.    Golding  ..  Crowle,  B.  N.  P. 

''■(,)  In  Johnson  ..  Browning,  6  Mod.  216,  Ld.  Holt  seems  to  have  considered 
,hs  proof  to  be  essential  to  the  defence  ;  but  it  seems  to  be  a  good  defence  ta 
prove  reasonable  grounds  for  suspecting  the  guilt  of  the  plaintiff,  although  no 
felony  was  committed.  See  Samuel  «.  Payne,  Dougl.  345-  Ledwith  ..  Catch- 
pole,  Cald.  291. 


80  CIVIL  REMEDY— EVIDENCE. 

[  *80  ]     cumstances  as  tend  to  throw  suspicion  on  the  plaintiff  (r). 
— This,  however,  would  probably  be  deemed  to  be  insufiB- 
cient  in  case  of  express  proof  that  the  defendant  knew  that  the 
prosecution  was  without  foundation. 

In  the  case  of  Johnson  v.  Broivning  (s),  where  it  appeared  that 
no  one  was  present  at  the  time  of  the  supposed  robbery  but  the 
■wife  of  the  defendant  in  the  action,  Ld.  Holt  admitted  evidence  of 
■what  she  swore  at  the  trial  of  the  indictment;  but  it  is  obvious  that 
tliis  was  done  under  the  impression  that  it  was  incumbent  on  the  de- 
fendant to  establish  the  fact  of  probable  cause,  although  no  evidence 

were  given  to  establish  the  negative. 
[  *81  ]  *Where  the  plaintiff  has  been  arrested  on  a  charge  of 

larceny,  it  has  been  doubted  -nhcther  the  defendant,  after 
having  given  some  evidence  of  probable  cause,  can  give  evidence  to 
prove  that  the  plaintiff  was  a  man  of  bad  character  (^)  ;  but  it  seems 
that  although  such  evidence  affords  no  presumption  of  probable 
cause  in  the  particular  instance  (w),  yet  that  it  is  matter  admissible 
in  mitigation  of  damages. 

Sdly.  The  damage  sustained. — The  plaintiff  may  prove  in  aggra- 
vation of  damages  the  length  of  imprisonment,  his  expenses,  situation 
and  circumstances.  The  peril  and  jeopardy  in  which  a  man's  life 
and  liberty  are  placed  by  a  malicious  prosecution,  or  the  prejudice  to 
his  fame  and  reputation,  consdtute  a  sufficient  ground  of  action  (x)  ; 

(r)  See  Knight  v.  Germain,  Cro.  Eliz.  134.  Pain  v.  Rochester,  Cro.  Eliz 
871. 

(s)  6  Mod.  216.  In  B.  N.  P.  14,  citing  Cobb  v.  Carr,  it  is  said,  that  the  de- 
fendant's evidence  of  what  he  swore  upon  the  trial  of  the  indictment  is  evi- 
dence  ;  this,  however,  does  not  seem  to  be  warranted,  for  if  the  principle  of  ne- 
cessity,  operated  in  such  a  case,  the  effect  would  be  to  admit  the  testimony  of 
the  dffendant  himself,  by  which  means  the  plaintiff  would  have  the  benefit  of 
a  cioss-examinalion. 

(t)  In  the  case  of  Rodriguez  v.  Tadmire,  2  Esp.  C.  721,  Lord  Kenyon  admit- 
ted general  evidence  to  that  effect.  In  Newsam  v.  Carr,  2  S'.arkie's  C  69,  Cor. 
Wood,  B.  where  a  witness  was  asked  whether  the  plaintiff's  house  had  not  been 
searched  on  former  occasions,  and  whether  he  was  not  a  man  of  susiucious 
character,  Wood,  B.  overruled  the  question,  observing,  that  in  actions  of  slan- 
der such  evidence  would  be  admissible  to  mitigate  the  damages,  but  that  in  the 
present  case,  it  would  afford  no  evidence  of  probable  cause. 

(")  I'jid.  {X)  Savil  V,  Roberts,  B.  N.  P.  13. 


MALICIOUS  PROSECUTION.  82 

so  although  neither  his  fame  nor  liberty  bo  affected,  if  he 
has  been  put  to  needless  expense  *to  defend  himself  (?/).     [  *82  ] 
In  the  asessment  of  damages,  the  costs  incurred  by  the 
plaintiff  are  to  be  estimated  as  between  attorney  and  client  (z). 

If  a  man  be  falsely  and  maliciously  indicted  of  a  crime  which  is 
a  scandal  to  him,  and  hurts  his  fame,  an  action  lies,  although  the  in- 
dictment be  insufficient,  or  an  ignoramus  be  found  (a)  ;  for  although 
no  expense  may  have  been  incurred,  the  mischief  of  the  slander  has 
been  effected  (6). 

A  plaintiff  cannot  upon  the  trial  object  to  the  insufficiency  of  a  plea 
of  justification  in  point  of  law  (c). 

Upon  the  execution  of  a  writ  of  inquiry,  where  the  defendant  in 
an  action  for  slander  has  allowed  judgment  to  go  by  default,  it  is  not 
incumbent  on  the  plaintiff  to  give  any  evidence.  The  jury,  in  the 
absence  of  evidence,  are  not  confined  to  nominal  damages  (cZ). 

A  member  of  parliament  may  be  called  upon  *to  state     [  *83  ] 
(e)  whether  another  member  took  part  in  a  particular  dis- 
cussion, but  cannot  be  examined  as  to  what  was  said  in  the  course  of 
the  debate. 

In  Carry  v.  Walter  (/),  a  barrister  subpoenaed,  to  prove  that  he 
had  made  a  motion  in  the  court  of  King's  Bench  for  a  criminal  infor- 
mation against  the  plaintiff,  for  publishing  which  the  latter  brought 
his  action.  Upon  the  trial.  Eyre,  C.  J.  was  of  opinion  that  it  was  im- 
proper to  call  a  barrister  as  a  witness  to  prove  such  a  circumstance, 
but  that  the  party  ought  to  prove  it  by  other  means  ;  that  it  was 
at  the  option  of  the  counsel  to  give  or  withhold  his  testimony. 

(y)  B.  N.  P.  14.  This  was  formerly  doubted,  ibid.  But  it  has  been  decided, 
that  such  an  action  lies  by  the  husband  for  the  expense  of  defending  his  wife, 
B.  N.  P.  13.      Jones  v.  Gwynn,  10  Mod.  214;   1  Salk.  15,  Glib.   185. 

(z)  Sandback  v.  Thomas,  1  Starkie's  C.  306.  But  see  Sinclair  v.  Eldred,  4 
Taunt.  7. 

(a)  Savil  v.  Roberts,  B.  N.  P.  13;  Chambers  v.  Robinson,  Stra.   691. 

(b)  Ibid.  (c)  Edmonds  v.  Walter  3  Siarkie's  C  7. 
{(1)  Tripp  V.  Thomas,  3  B.  &  C.  427. 

(e)  5  Esp.  R.  136.  (/)  1  Esp.  456. 


CnAPTEE  II. 


Evidence  for  the  Defendant. 

[  *84  ]  *It  has  already  been  seen  of  what  means  of  defence  the 

defendant  may  avail  himself  under  the  plea  of  the  general 
issue  (a). 

Under  that  plea  it  is  incumbent  on  the  plaintiff  to  establish  his 
cause  of  action  as  alleged  in  the  declaration  ;  but  where  he  has  once 
established  a  jonma/a«e  case  by  proof  of  the  speaking  or  publish- 
ing matter  which,  unexplained,  is  injurious  and  actionable,  it  lies  on 
the  defendant  to  explain  it  if  he  can,  and  to  show  by  reference  to 
circumstances,  that  the  supposed  slander  or  libel  was  not  in  fact  used 
in  an  injurious  and  actionable  sense  (6),  or  that  it  was 
[  *85  ]  used  under  *circumstances  which  afforded  either  an  abso- 
lute or  qualified  justification  (c). 

(a)  Supra,  vol.  I.  p.  453. 

(6)  Cro.  J.  114.  B.  N.  P.  5.  Vide  supra  vol.  I.  c.  8.  &  13.  In  the  case 
of  Wilson  V.  Stephenson,  2  Price  282,  the  jury  found  that  words  charging  the 
plaii.tiflf  with  being  a  murderer,  and  having  murdered  his  brother,  haxi  beea 
spoken  by  the  defendant,  but  had  not  been  spoken  maliciously,  and  a  veidict 
having  been  entered  on  this  finding  for  ihe  defendant,  the  court  refused  a  new 
trial,  being  of  opinion  that  it  was  entirely  a  question  for  the  jury  although  evi- 
dence had  been  given  of  other  language  of  reprobation  used  at  tlie  same  time,, 
and  in  fact  the  plaintiff  had  been  the  innocent  cause  of  his  brother's  death  by 
the  discharge  of  a  small  cannon.  But  see  the  case  of  Bromage  v.  Prosser, 
supra  vol.  1.  p.  221. 

(c)  Supra  vol.  I.  p.  229. 


EVIDENCE  IN  MITIGATION.  85 

In  ihe  csise  of  Fevf old  v.  Westcote^d^/ity^^s  proved  that  the 
defendant  said  of  the  plaintiff,  "  Why  do  not  you  come  out,  you 
blackguard  rascal  scoundrel  ?  Penfold,  you  are  a  thief."  The 
witness  who  proved  the  words  was  not  asked  whether  by  the  word 
thief  he  understood  that  the  defendant  meant  to  charge  the  plaintiff 

with  felony.  . 

Chambre,  J.  in  his  direction  to  the  jury,  said  that  it  lay  on  the 
defendant  to  show  that  felony  was  not  imputed  by  the  word  thief. 
And  after  a  verdict  for  the  plaintiff,  a  new  trial  was  refused. 

The  defendant,  according  to  the  ordinary  rule,  is  entitled  to  have 
the  whole  of  the  alleged  libel  read  (e),  or  the  whole  of  the  conver- 
sation  in  which  the  slander  complained  of  was  spoken,  detailed  in 
evidence.     For  he  is  entitled  to  show  by  the  whole  con- 
text, that  the  alleged  libel  or  words  'were  not  in  fact     [  *86  ] 
used  in  an  actionable  sense.     And  where  a  letter  of  the 
defendant's  was  read,  which  referred  to  an  account  of  the  transac- 
tion  related  in  a  newspaper,  that  newspaper,  it  was  held,  was  evi- 

dence  ( /).  ,         ,  , 

Where  it  plainly  appears  from  the  context,  that  the  words  were 
not  used  in  a  felonious  sense,  the  plaintiff  will  be  nonsuited  upon 

his  own  showing  (g) 

Where  the  defendant  shows  facts  in  defence  as  an  answer  to  the 
action  in  the  absence  of  express  malice,  it  is  still  a  question  for  the 
court  whether  in  point  of  law  the  slander  does  not  mamfestlyex- 
ceed  the  limits  of  communication  which  such  an  occasion  would  jus- 
tify :  when  that  is  the  case,  the  question  of  express  mahco  is  not 
to  be  left  to  the  jury  (/i)  [!]• 

id)  2  N.  R.  335.     Christie  v.  Cowell,  Peake's  C  4.     Sel  N.  P.  1250. 

(e)  Cooke  V.  Hughes,  1  R.  &  M  112. 

(/•)  Weaver  ..  Loyd,  2  C.  &  P-  296.     Cor.  Garrow,  B 

1     Thompson  ..  Bernard,  1  Camp.  C  48.     See  note  h  p.  86  vol.  I. 

\l]  Godson  ..  Flower,  2  B.  &  B.  7.  The  defendant  wrote  a  letter  blammg 
Ihe  party  addressed  for  employing  the  plaintiff  (an  attorney),  addmg  U 
•  yoawiU  be  mtsled  by  an  attorney  who  only  considers  hts  own  -  erest  you 
IZ  have  to  repent  it,  &c."  It  was  held  that  the  jury  were  properly  d.e  ted 
to  consider  whether  the  expression  were  meant  of  the  P-^-^"  ^J^;  J^^;^ 
of  the  plaintiff  in  particular  ,  and  that  it  was  not  necessary  to  leave  it  to  them 


8T  CIVIL  REMEDY : 

[  *87  ]         *The  defendant  may  also  show  in  defence,  that  the 
plainiiff  himself  procured  the  act  to  he   done  of  which 
he  complains  (i). 

The  plaintiflf  cannot  recover  if  the  vocation  in  which  he  is  li- 
belled  be  au  illegal  one  (k). 

It  is  perfectly  well  settled,  that  the  defendant  cannot,  under  the 
plea  of  the  general  issue,  in  an  ordinary  action  for  slander,  go  into 
evidence  of  the  truth  of  the  imputation,  even  for  the  purpose  of 

mitigating  the  damages  (')  [1]. 
[  *88   ]         But  doubts  have  arisen  upon  the  question  to  what  ex- 
tent the  defendant  is  at  liberty  to  impeach  the  *plaintiff 's 
character,  by  aflFecting  him  with  a  suspicion  of  the  truth  of  the  al- 
leged calumny  (ni)  [2]. 

The  main  question  seems  to  have  been,  whether  the  defendant  bo 
at  liberty  to  do  more  than  to  impeach  the  plaintiff's  character   by 

whether  it  was  a  bond  fide  or  malicious  publication  ;  and  Richardson,  J.  observ- 
ed, "  If  a  man  giving  advice  call  another  a  thief,  surely  it  is  net  necessary  to 
leave  it  to  the  jury  whether  this  is  a  confidential  communication."  And  see 
Brown  v.  Broom,  2  Starkie's  C  297. 

[1]  This  doctrine  is  doubled.     See  note  [1],  p.  356,  infra. 

(?)  King  V.  ^\  aring,  5  Esp.  C  13.  Where  the  witness  in  an  action  for  a 
libel  stated,  that  having  heard  that  the  defendant  had  a  copy  of  the  print  (alleg- 
ed to  be  libellous),  he  went  to  his  house  and  requested  to  see  it,  on  which  the 
defendant  produced  it,  and  pointed  out  the  figure  of  the  plaintiff  and  the  other 
persons  ridiculed,  Ld.  Ellenborough  held,  that  the  publication  was  insufficient. 
Smith  V.  Wood,  3  Camp.  323.  Tamen  qvare,  for  there  was  no  evidence  to 
show  that  the  plaintiff  was  in  piivity  with  the  witness. 

(k)  Hurst  V.  Bell,  1  Bingh.  1,  where  the  plaintiff  complained  of  having  been 
libelled  in  his  vocation  as  an  exhibitor  of  sparring  matches  ;  nor  does  an  action 
lie  for  a  libel  against  a  party  touching  his  conduct  in  any  illegal  transaction. 
Yrissarl  v.  Clement,  3  Bingh.  432.  Secus  where  the  matter  is  independent  of 
the  illegal  transaction,  though  arising  our  of  it. 

(/)  See  the  resolution  of  the  judges  in  Underwood  v.  Parkes,  Str.  1200. 
Mullett  V.  Hulton,  4  Esp.  C.  248.     Infra.  98. 

(m)  See  Mullett  v.  Hulton,  4  Esp.  C  248.  The  Earl  of  Leicester  v.  Walter, 
2  Camp.  C.  251.     1  M.  &  S.  284,  and  infra  89,  90,  &c. 

[1]  See  vol.  I.  p.  233,  note  [Ij. 

[2]  See  note  [1]  page  97,  infra. 


EVIDENCE  IN  MITIGATION.  88 

general  evidence,  or  whether  he  be  also  entitled  to  go  into  evidence 
of  particular  facts,  tending  to  show  that  the  plaintitf  had  been  guilty 
of  the  particular  act  imputed  to  him. 

General  evidence  to  show  that  the  plaintiff,  previously  to  the  al- 
leged slander,  laboured  under  a  general   suspicion  of  having  been 
guilty  of  similar  practices,  seems  iu  principle  to  be  admissible,  as 
rmmediately  and  necessarily  connected  Aviih  the  question  of  dam- 
ages.    He  complains  of  loss  of  reputation,  and  that  he  has  been  de- 
prived of  his  character  by  the  act  of  the  defendant.     Is  not  the  de- 
fendant, then,  to  be  permitted  to  show  that  the  plaintiff's  character 
was  previously  tainted  with  suspicion,  or  that  he  had  in  fact  little 
character  or  reputation  to  lose  ?     To  deny  this,  would  be  to  decice 
that  a  man  of  the  worst  of  character  was  entitled  to  the  same  mea- 
sure of  damages  with  one  of  unsullied  and  unblemished  reputation  ; 
a  reputed  thief  would  be  placed  on  the  same  footing 
with  the  most  honourable  merchant— *a  virtuous  woman,     [  *89  ] 
with  the  most  abandoned  prostitute. 

To  enable  the  jury  to  estimate  the  probable  quantum  of  injury 
sustained,  a  knowledge  of  the  party's  previous  character  is  not  only 
material,  but  seems  to  be  absolutely  essential  (w)- 

(n)  Lord  Ellenborough,  C.  J.   in   the  case  of Moore,  1  M.  and  S.  284, 

la-.d  down  both  the  rule  itself,  and  the  principle  on  which  it  is  founded,  in  the 
most  clear  and  explicit  manner  ;  he  observes,  -  Certainly  a  person  of  d.spar- 
acred  fame  is  not  entitled  to  the  same  measure  of  damages  with  one  whose  char- 
acter  is  unblemished,  and  it  is  competent  to  show  that  by  evidence."  And 
Grose  and  Bayley,  Js.  agieed,  that  such  evidence  was  admissible  m  mitigalion 
of  damages. 

In  the  case  of  the  Earl  of  Leicester  v.  Walter,  2  Camp.  C.  251,  an  action 
was  brouaht  for  a  libel  published  in  the  Morning  Herald,  imputing  lo  the  plain- 
tiff  the  offence  for  which  Lord  Audley  suffered  in  the  reign  of  Ch.  L  The  de- 
claration contained  the  usual  exculpatory  averments,  and  stated  that  the  plain- 
tiff had  lost  the  society  of  many  worthy  subjects  in  consequence  of  the  publica- 
tion.    The  defendant  pleaded  not  guilty. 

Upon  the  trial  before  Sir  J.  Mansfield,  C  J.  evidence  was  offered  in  mitiga- 
tion of  damages,  that  at  the  time  of  the  publication  the  plaintiff  was  generally 
suspected  to  have  been  guilty  of  the  charge  imputed,  and  that  in  consequence 
of  this  general  suspicion  his  acquaintance  had  deserted  him. 

This  evidence  was  objected  to.  It  was  contended  that  it  would  be  in  vain  to 
bring  an  action  if  such  evidence  were  permitted  ;  that  a  plaintiff  could  not 
come  prepared  to  defend  every  act   of  his  life.     That  there  was  nothing  on  the 

Vol.  II.  71 


90  CIVIL  REMEDY. 

[  *90  ]  'The  question  \vbether  the  defendant  should  be  permit- 

ted to  adduce  evidence  of  particular  facts,  *tending  to 
[  *91  ]       shew  that  the  plaintiff  was  really  guilty  of  the  charge 

record  to  put  the  character  in  issue  ;  and  that  to  admit  such  evidence  would 
only  be  giving  the  defendant  an  opportunity  of  continuing  and  aggravating  the 
oiiginal  libel. 

Sir  J.  Mansfield,  C.  J.  admitted  the  evidence,  ohserving,  that  he  could  never 
answer  to  his  own  satisfaction,  the  arguments  used  for  the  plaintiff.  That  since 
it  had  been  held  that  any  thing  short  of  proving  the  charge  imputed  in  the  libel 
was  evidence  in  mitigation,  he  did  not  know  how  to  reject  the  witnesses.  Besides 
that,  the  declaration  stated  that  the  plaintiff  had  always  preserved  a  good  char- 
acter in  society,  from  which  he  had  been  driven  by  the  insinuations  in  the  libel. 
That  the  question  for  the  jury  was,  whether  the  plaintiff  had  actually  suffered 
this  grievance  or  not,  and  therefore  that  evidence  to  show  that  his  character  was 
in  as  bad  a  situation  before,  as  after  the  libel,  must  be  admitted. 

The  learned  judge  in  summing  up,  directed  the  jury  to  consider,  in  assessing 
the  damages,  whether  the  reports  which  had  been  proved  were  sufficient  to 
show  that  the  plaintiff  could  receive  little  injury  ;  and  that,  in  this  point  of  view, 
it  did  not  matter  whether,  the  reports  were  well  or  ill-founded,  provided  they 
got  into  many  men's  mouths. 

In  the  case  of  Williams  v.  Callender,  Holt's  C.  307,  Lord  Ellenborough  is 
reported  to  have  said,  that  "  though  there  was  no  justification  on  the  record, 
the  defendant  might  give  in  evidence  somewhat  of  the  real  character  of  the 
plaintiff,  and  show  that  it  was  not  unblemished  and  entire."  And  see  Holt's 
Law  of  Libel,  270. 

In  the  case  of  Ellershaw  v.  Robinson  and  Ux.  Sum.  Sp.  Ass  1824,  which 
was  an  action  for  words  imputing  to  the  plaintiff,  a  widow,  an  adulterous  in- 
tercourse with  Robinson,  in  consequence  of  which  special  damage  had  been 
sustained,  Holroyd,  J.  held,  that  it  would  be  competent  to  the  defendants  to  go 
into  general  evidence  to  impeach  the  plaintiff's  character  for  chasiity.  See  also 
Famer  v.  Merle,  cited  in  the  case  of  the  Earl  of  Leicester  v.  Walter,  2  Camp. 
25L 

In  the  case  of  Jones  r.  Stevens,  11  Price  235,  which  was  an  action  for  a 
libel  on  the  plaintiff  in  his  character  of  attorney,  and  containing  general  reflec- 
tions on  the  plaintiff's  piofessional  conduct  and  respectability, — the  defendant 
pleaded  the  general  issue,  and  several  pleas  of  justification,  some  of  which  al- 
leged, in  very  general  terms,  that  the  plaintiff  had  conducted  himself  in  an  un- 
professional and  disreputable  manner.  On  the  trial,  the  defendant  proposed  to 
prove  by  witnesses  in  support  of  the  pleas  of  justification,  and  in  contradiction 
of  the  general  averment  in  the  declaration  that  the  plaintiff  had  carried  on  the 
profession  and  business  of  an  attorney  with  great  credit  and  reputation,  that  the 
plaintiff  was  of  general  bad  character  and  repute  in  his  business  of  an  attorney  ; 


EVIDENCE  IN  MITIGATION.  92 

imputed  to  him,  stands  on  a  "very  different  foundation.       [  "92  ] 

To  allow  this,  generally,  would  be  to  overturn  the  rule 

laid  down,  *in  the  case  of  Underwood  v.  Farkes,  by  all       [  *93  ] 

but  the  evidence  was  rejected  by  the  Chief  Baron  as  inadmissible  :  and  on 
motion,  afterwards,  for  a  new  trial,  the  court  of  Exchequer  was  of  the  same 
opinion,  and  held  with  many  forcible  ofcservalions,  that  such  evidence  was  not 
admissible,  eiiher  in  mitigation  of  damages,  or  in  support  of  any  of  the  allega- 
tions contained  in  the  pleas  of  justification.  Wood,  B.  observed,  "I  have 
ever  understood  that  general  good  character  is  always  presumed  in  law,  unless 
by  evidence  of  particular  acts,  fairly  and  specifically  put  in  issue,  that  piesump- 
tion  is  negatived.  Some  cases  have  been  mentioned  wherein  it  should  seem 
that  such  "evidence  has  been  received  at  Nisi  Prius:  I  will  not  attempt  to  dis- 
tinguish the  present  from  those— I  strongly  protest  against  any  such  mischiev- 
ous doctrine  altogether,  and  deny  that  it  has  any  legal  foundation. 

In  the  above  case,  that  of  Waithman   v.  Weaver  was  cited,  to  show  the 
opinion  of  Abbott,  L.  C.  J.,  that  in  an  action  for  a  libel  on  a  tradesman,  insin- 
uatin<T  that  he  had  been  guilty  of  receiving  stolen  goods,  evidence  was  inadmis- 
sible "to   show  that  the  libel  was  no  more  than   a  repetition  of  rumours  which 
were  prevalent  at  the  time,  of  the  facts  imputed  to  the  plaintiff;  and  according 
to  the  report  of  the  case  in  11  Pnce  257,  n.  his  lordship  was  not  satisfied  that  he 
ou<Tht  to  receive  the  evidence,  which  was  afterwards  withdrawn.     But  accord- 
in^"  to  the  report  of  the  same  case,  1  D.  &  R.  10,  the  defendant's  counsel  of- 
fered in  evidence  facts  short  of  a  complete  justification  ;  and  all  that  his  lord- 
ship decided  was,  that  facts  were  not  admissible  in  evidence  ;  and  his  lordship 
distinguished   the  case  from   that  of  the  Earl    of  Leicester  v.   Walter,   on 
the   very   distinction  between   evidence   of  rumours    and  evidence  of  facts. 
He  observed,  "  The  case  of  the  Earl  of  Leicester  v.  Walter  is  very  different 
from  the  present.     There,  evidence   of  rumours  was  admitted,   to   show  that 
the   plaintiff,   having  previously  lost  his  character,  had  sustained  no  injury ; 
here  it  is  proposed  to  give  not  rumours,  but  facts,  in  evidence,  and  there  is  a 
vast   distinction    between   rumours   and  facts.     I  think   the  rule  is   not  so  laid 
down  in  any  of  the  cases  which  have  been  decided  on  this  subject,  as  to  preclude 
the  exercise  of  my  own  judgment ;  and  I  am  decidedly  against  the  reception  of 
the  evidence  proposed  to  be  adduced.     I  own  that  I  have  always  thought  the  rule 
to   be,  that  under   the  general  issue  facts  cannot  be  given  in  evidence,  unless 
they  are  pleaded  as  matter  of  justification,  and  I  have  not  been  satisfied  with 
any  of  the  cases  which  have  laid  down  a  different  position."     Notwnhstanding 
the  respect  which  all  must  entertain  who  have  had   opportunities  of  judging  of 
the  profound  learning  and  clear  apprehension  of  the  venerable  judge  {W  cod,  B.) 
who,  in  the  case  of  Jones  v.  Stevens,  expressed  so  strong  and  decisive  an 
opinion  on  the  inadmissibility  of  general  evidence  of  previous  bad  character,  in 
actions  for  slander,   it  may  be  permitted  to  remark,  that  though  the  law  pre- 
sumes in  favour  of  character,  it  is  but  a  presumption  capable  of  proof  to  the 


94  CIVIL  REMEDY  : 

[  *91  ]       the  judges — that  the  truth  of  the  imputation,  should  *not 

be  given  in  evidence  under  the  general  issue,  even  in  mit- 

[  *95  ]       igation  of  damages  ;  for  if,  as  seems  *to  have  been  held 

contrary,  and  that  in  several  instances  the  law  does  not  permit  character  to  be 
impeached  by  evidence  of  particular  facts,  but  by  general  evidence  only  ;  as 
where  the  general  credibility  of  a  witness  is  impeached,  or  the  character  of  a 
prosecutrix  on  a  charge  of  rape.  The  principle  on  which  such  general  evidence 
is  admitted,  whilst  evidence  of  particular  facts  is  excluded,  has  been  frequently 
recognized:  it  is  this,— that  the  party  may  be  prepared  with  general  evidence 
in  support  of  character,  though  he  cannot  be  supposed  to  be  prepared  with  evi- 
dence  to  justify  his  conduct  through  life. 

In  Snovvdon  v.  Smith,  Devon.  Lent  Assizes,  1811,  1  M-  &  S.  286,  note  (a), 
in  an  action  against  the  defendant  for  saying  "  that  he  had  heard  that  the  plain- 
tiff had  been  guilty  of  unnatural  practices,"  to  which  the  defendant  pleaded  a 
jushfication  alleging  instances,  Chambre,  J  would  not  permit  a  witness  to  be 
asked  whether  such  reports  as  the  defendant  had  stated  had  not  gone  abroad, 
and  held,  that  the  case  of  the  Earl  of  Leicester  v.  Walter  did  not  apply,  because 
the  defendant  had  justified.  Whether  the  evidence  in  this  case  was  rightly  re- 
jected, cr  not,  on  the  ground  alleged  in  the  report,  it  is  clear  that  the  learned 
judpe  did  not  mean  to  rule  in  opposition  to  the  Earl  of  Leicester  v-  Walter.  It 
might,  perhaps,  be  difficult  to  sustain  the  distinction  on  the  ground  of  a  justifica- 
tion pleaded-  The  reason  for  admitting  such  evidence  is  to  show,  that  in  fact 
the  plaintiff  had  sustained  little  injury  as  to  character,  and  so  to  reduce  the 
damages  ;  and  that  is  a  reason  for  admitting  such  evidence,  which  is  wholly  in- 
dependent of  the  question  of  justification  ;  and  for  that  purpose  such  evidence 
may  be  admissible,  though  wholly  inadmissible  as  evidence  to  prove  the  justifi- 
cation. It  is,  however,  to  be  observed,  that  there  may  be  a  distinction  between 
evidence  of  particular  rumours,  such  as  was  rejected  in  the  case  of  Snowdon  v. 
Smith,  and  general  exidence,  \o  show  that  the  plaintiff 's  character  had  been 
previously  tainted  and  reduced.  The  plaintiff  complains  of  loss  of  character; 
the  question  is,  what  character  had  he  to  lose?  If  he  had  but  liule,  he  can  have 
lost  but  little  ;  and,  strictly  speaking,  the  evidence  of  mere  rumours  is  not  di- 
rectly applicable  fur  this  purpose, — such  rumours  may  have  partially  prevailed, 
but  not  have  obtained  credit.  The  proper  questions  seems  to  be,  what  was  the 
plaintiff's  general  characfer  for  honesty  or  humanity,  according  to  the  nature  of 
the  slander,  previous  to  the  alleged  injury. 

It  may  be  observed,  that  the  rule  which  excludes  evidence  of  particular  facts, 
which  prove  or  tend  to  prove  the  truth  of  the  alleged  slander,  is  attended  in 
practice  with  this  inconvenience,  that  a  defendant,  for  the  sake  of  being  admit- 
ted to  give  evidence  of  facts,  which  he  might  reasonably  expect  would,  if  dis- 
closed, greatly  reduce  the  damages,  is  under  the  necessity  of  pleading  a  justifi- 
cation which  he  knows  he  cannot  support.     If  A.  published  that  B.  had  com- 


EVIDENCE  IN  MITIGATION.  95 

by  Eyre.  C.  J.  (w),  the  defendant  might  in  tniti^ration  of  daraaf!;e3 
give  any  evidence  short  of  such  as  would  be  a  complete  defence  to 
the  action  ;  how  would  it  be  possible  to  draw  the  line,  and  to  restrain 
the  evidence  of  facts  tending  to  throw  suspicion  on  the  plaintiff 
"within  such  limits,  that  it  should  not  produce  actual  conviction 
on  the  minds  of  the  jury  ?  The  practice,  it  is  obviou',  would 
be  attended  with  all  the  hardship  and  inconvenience  which  would 
result  from  admitting  a  complete  justification  under  the  general 
issue ;  for  the  plaintiff  would  be  equally  liable  to  surprise,  and  as 
little  able  to  meet  the  charge  in  the  one  case  as  in  the  other. 

No  such  objection  applies  to  general  evidence  affecting  the  plain- 
tiff's character,  for  every  one  who  possesses  a  good  character  in 
society  may  come  prepared  with  general  evidence  to  sup- 
port it,  but  no  one  can  be  ready  to  answer  *partlcular     [  *96  ] 
charges  unless  he  be  previously  apprizad  of  them  (o)  [IJ. 

miUed  a  robbery,  and  the  fact  was  tbat  B.  had  attempted  a  robbery,  which,  in 
lecal  strictness,  was  not  consummated,  A.  in  an  action  for  the  slander,  must 
either  plead  a  justification  which  he  knows  that  he  cannot  prove,  or  he  would 
be  excluded  from  that  evidence  which  ought  to  be  followed  by  mere  nominal 
damages  [1].  In  practice  no  great  inconvenience  is  occasioned  ;  in  this,  as  in 
many  other  instances,  a  skilful  pleader  will  resort  to  pleas  of  little  or  no  use  as 
to  the  issues  founded  upon  them,  but  of  the  greatest  importance  with  a  view  to 
the  admission  of  evidence.  The  incongruity  of  rejecting  evidence  as  to  the 
quantum  of  damages,  which  ou^ht  materially  to  govern  the  amount,  without 
pleading  a  false  plea,  might  be  avoided,  as  well  as  the  inconvenience  which 
would  result  from  permitting  such  evidence  to  be  given  without  notice,  by  ad- 
mitting it  conditionally,  after  due  notice  given  to  the  plaintiff  of  the  defendant's 
intention,  to  prove  the  specific  facts  in  mitigation  of  damages. 

(m)  Knobell  v.  Fuller,  infra  96. 

(o)  See  the  observations  of  Bayley,  J.  in  R.  v.  Watson,  2  Starkie's  C.  152. 

[1]  In  the  case  of  the  Enrl  of  Leicester  r.  Wiilter,  2  Camp.  251,  the  counsel  for 
the  defendnnt  said  argwndo :  that  in  a  case  before  Le  Blanc,  J.  at  Worcester,  that 
learned  jui'ge  received  evidence  ?inrfer //(e  jrenern/ jsskp,  that  the  plaintiff  had  been 
guilty  of  Q</f/«/)^s  to  commit  the  crime  which  the  defendant  had  imputed  to  him. 
According  to  this  view  of  the  law,  which  is  believed  to  be  entirely  correct,  the  diffi- 
culty suggested  by  the  learned  author  is  obviated, 

[1]  Taking  into  view  the  whole  of  what  is  said  in  the  text  and  notes  of  this 
chapter,  on  the  subject  of  the  plaintifTs  character,  in  reference  to  the  question  of 
damages,  it  is  undeniable  that  the  courts  in  England  do  hold,  that  general  suspt- 


96  CIVIL  REMEDY  : 

cions  and  common  reports  o(\he  guilt  of  the  accused  maybe  given  in  evidence  in 
mitigation  of  damages.  Here,  aoain,  it  is  manifest  that  the  learned  author  is 
not  well  content  with  the  doctrine  he  feels  himself  bound  to  advance,  and  that 
he  would  gladly  place  the  defence  upon  genera!  evidence  of  the  /lad  character 
of  the  plaintiff,  as  when  the  characier  of  a  H'itness  for  veracity  is  impeached, 
rather  than  upon  evidence  of  suspicion  and  reports  ;  but  such  has  not  been,  nor 
is  it  now  the  law,  as  held   in  England.     The   doctrine  there  rests  principally 

upon  the  cases  of  Lsicester  v.  Waller,  2  Camp.  251  ; v.  Moor,  1  Mauls 

&  Sel.  281,  and  Knobell  v.  Fuller,  infra  p.  96,  note  [p].  It  was  adopted  in 
Pennsylvania  in  Williams  and  wife  v.  Mayer  and  wife,  1  Binney  92  n  ;  in 
Kentucky,  in  Middleton  and  w'Je  v.  Calloway,  2  A.  K.  Marshall's  R.  372  ;  in 
South  Carolina,  in  Buford  v.  M'Luny,  1  Nott  &  M'Cord  2G8  ;  in  Connecticut, 
in  Hyde  v.  Bailey,  3  Conn.  R.  466,  and  in  Treat  v  Browning,  4  Conn.  R.  414, 
On  the  other  hand,  the  doctrine  of  the  English  courts  has  never  prevailed  in 
Virginia,  Massachusetts  or  New-York  :  thus  in  A^irginia,  in  M"Alexander  v. 
Harris,  6  Munf.  465,  evidence  showing  a  probable  ground  of  suspicion  was  re- 
fused to  be  received  in  mitigation  of  damages,  although  the  English  cases  above 
referred  to,  were  strongly  enforced  by  counsel.  In  Massachusetts,  the  question 
was  very  fully  considered  in  the  case  of  Wolcott  v.  Hall,  6  Mass.  R.  514,  and 
the  evidence  held  to  be  inadmissible.  That  case  came  before  the  court  in  1810. 
On  the  trial,  the  defendant  offered  to  prove  reports  current  in  the  neiohborhood, 
that  the  plaintiff  was  guilty  of  the  crime  imputed  to  him.  C.  J.  Parsons  in 
pronouncing  judgment,  observed,  "  Evidence  as  to  the  general  character,  of  the 
plaintiff,  he  may  at  all  times  encounter,  if  untrue  ;  and  if  his  character  be  gen- 
erally bad,  independent  of  the  slander  of  which  he  complains,  the  jury  may  con- 
sider it,  for  the  worth  of  a  man's  general  reputation  among  his  fellow-citizens 
may  entitle  him  to  large  damages  for  an  attempt  to  injure  it,  which  he  ought 
not  10  obtain  if  his  character  is  of  little  value  or  no  estimation  in  society.  But 
evidence  of  the  plaintiff's  general  character  was  not  offered  ;  but  only  an  at 
tempt  to  blast  his  reputation  by  particular  reports  which  he  might  not  have  it  in 
his  power  to  silence,  but  by  commencing  this  prosecution  ;  and  if  such  reports 
could  be  given  in  evidence,  the  subject  of  them,  however  innocent,  instead  of 
seeking  redress  from  the  law^s,  had  better  sink  privately  under  the  weight  of  un- 
merited calumny,  lest  by  attempting  his  justificaiion  he  should  give  notoriety  to 
slanders  which  had  before  been  circulated  only  in  whispers."  This  doctrine 
was  re-asserted  by  the  same  court,  in  Alderman  v.  French,  1  Pick.  1  ;  and 
again  in  Bodwell  v.  Swan  and  wife,  3  Pick.  376.  In  the  last  case,  Parker,  C- 
J.  remarked,  "  It  appears  to  us  that  the  rejection  of  evidence  offered  bv  the  de- 
fendant, tending  to  prove  that  the  words  spoken  and  charges  made  weie  true,  in 
order  to  show  that  the  wnn  believed  what  she  said  to  be  true,  was  right.  It 
was  so  settled  in  Alderman  v.  French,  and  upon  sound  principle.  In  truth, 
such  evidence  would  answer  all  the  purposes  of  the  defendant  without  exposing 
him  to  the  just  consequences  of  attempting  to  justify,  and  failing  in  the  attempt ; 
and  this  further  mischief  would  follow  :  that  tho  notice  to  the  plaintiff  of  what 


EVIDENCE  IN  MITIGATION.  96 

is  intended  to  be  proved  which  is  given  by  a  special  plea  of  justification,  would 
be  wiihlu)lJe-i,  so  that  the  plainiitf  would  be  taken  by  surprise,  and  have  no 
opportunity  to  disprove  the  facts. 

The  modern  refinements  in  the  lavp  of  slander  have  been  productive  of  more 
misciiief  than  good.  The  defendants  in  such  cases  ought  to  be  ready  to  take 
the  ground  openly,  that  what  they  have  said  is  true,  or  ihey  should  be  ready  lo 
discharge  themselves  of  malice  under  the  general  issue  in  some  of  tlie  ways 
which  have  been  allowed  as  legitimate  grounds  of  defence. 

The  same  answer  may  be  given  to  the  offei  of  evidence,  that  there  were  stones 
and  rumors  in  the  neighborhood,  of  a  nature  to  raise  a  belief  in  the  mind  of  the 
wife  that  what  she  said  was  tiue.  These  very  stories  may  have  originated  m 
Blander;  and  character  could  not  be  protected  if  the  third  or  fourth  cuculator 
should  be  able  to  defend  himself  or  reduce  the  damages,  because  he  only  gave 
more  publicity,  and  added  the  weight  of  his  character  to  calumny  which  had 
been  originated  by  others.  ,  .    .^  . 

We  take  the  rule  to  be  that  the  general  had  character  of  the  plaintiff  may  be 
ehewn,  because  he  relies  upon  its  goodness  before  calumniated,  as  the  piincipal 
ground  of  damages.  A  fair  character  has  been  maliciously  attacked,  and  the 
law  will  repair  the  mischief  by  damages  ;  but  to  a  reputation  already  soiled,  the 
injury  is  small.  The  plaintiff  is  supposed  also  to  be  ready  at  all  times  to  sho«r 
the  general  goodness  of  his  character  ;  but  it  would  be  unrea-sonable  to  require  of 
him  to  have  witnesses  ready  to  disprove  particular  facts  which  he  has  no  notice 
are  intended  to  be  proved  against  him. 

In  New-York,  the  doctrine  of  Wolcott  v  Hall  6  Mass.  R.  514,  was  adopted  by 
the  Supreme  Court  in  Matson  v.  Buck,  5  Cowen  499.  See  also  to  the  same 
eifect  Brooks  v.  Bemiss,  8  Johns.  R.  455.  Root  v.  King,  7  Cowen  629  to  631  ; 
Mape's  V.  Weeks,  4  Wendell  059  ;  Oilman  v.  Lowell,  8  Wendell  579  ;  and 
Inman  v.  Foster,  Id.  602  ;  and  particularly  Root  v.  King  and  Oilman  v.  Lowell, 
in  which  the  English  cases  on  this  subject  are  reviewed  and  commented  upon. 

In  this  country  it  may  be  considered  as  settled  law.  that  evidence  of  general 
character,  m^y  be  given  in  mitigation  of  damages.  Springsteen  y.  Field,  An- 
thon's  n'  p.  105  ;  Paddock  v.  Salisbury,  2  Cowen  811  ;  Root  v.  King,  7  Cowen 
634  and  4  Wendell  114,  S.  C.  in  error  ;  Wolcott  v.  Hall,  6  Mass.  R.  514  ; 
Bod  well  V.  Swan  and  wife,  3  Pick.  376  ;  Brunson  v.  Lynde,  1  Root  354  ;  Sey- 
mour V.  Merrills,  Id.  459  ;  Austin  v.  Hanchett,  2  Root  149  ;  Vick  v.  White- 
field,  2  Hayw.  222  ;  McLuny  v.  Buford,  1  Nott  &  McCord,  208 ;  Eifert  v.  Saw- 
yer, 2  Nott  &  McCord  511. 

In  Foot  V.  Tracy,  1  Johns.  R.  45,  which  arose  as  early  as  1806,  the  question 
was  left  undecided,  whether  in  an  action  for  a  libel  the  defendant  could,  under 
the  plea  of  the  general  issue,  give  in  evidence  the  general  character  of  the  plain- 
iiff  in  mitigation  of  damages;  Chief  Justice  Kent  and  J.  Thompson  beu.g  of 
opinion  that  the  evidence  was  admissible,  and  Justices  Livingston  and  Tomp- 
kins holding  the  reverse.  Mr.  Justice  Spencer  delivered  no  opinion  in  that  case 
but  shortly  afterwards,  at  a  circuit  where  he  presided,  permitted  such  evidence 
to  be  given  in  mitigation  in  the  case  cited  above  of  Springsteen  v.  Field- 


97  CIVIL  REMEDY: 

[  *97  ]  In  the  case  of  Knohell  v.  Fuller  (p},  evidence  *was  ad- 
mitted ac  Nisi  Piius,  of  sppcific  facts,  upon  the  general  doc* 
trine,  that  an^/  evidence  was  admissible  in  mitigation  which  fell  short 
of  a  complete  justification;  and  in  the  case  of  the  Farl  of  Leices- 
ter  V.  Tfu/fer  (9),  Sir  J.  Mansfitld,  C.  J.  seems  to  have  acceded 
to  the  general  position  ;  but  in  that  case  which  the  evidence  was  ad- 
mitted was  of  a  general  nature  and  not  of  specific  [1]. 

(p)  An  action  was  brought  for  a  libel  published  in  the  Morning  Post  charg- 
ing the  plainiifF  with  having  been  concerned  with  a  person  of  the  name  of 
Knowles  in  procuring  money  from  the  relatives  and  friends  of  persons  convicted 
of  capital  offences,  under  pretence  of  being  able  to  procure  pardons  through  the 
interference  of  the  Duke  of  Portland,  in  whose  service  the  plaiiitifF  was. 

The  defendant  pleaded  the  general  issue,  and  in  mitigation  of  damages,  offer- 
ed evidence  to  prove  strong  grounds  of  suspicion  against  the  plaintiff.  Eyre,  C. 
J.  at  first  doubted  whether  this  evidence  was  admissible. 

Adair,  Seij.  for  the  defendant  admitted  that  the  defendant  could  not  give  ia 
evidence  on  the  general  issue  facts  wh;c'n,  if  pleaded,  would  amount  to  a  justifi- 
cation ;  but  contended  that  they  might  prove  facts  which  showed  there  was 
cause  of  suspicion,  and  therefore  proved  that  the  defendants  were  nut  induced  to 
publish  this  paper  by  reason  of  malice  against  the  plaintiff,  but  for  the  purpose 
of  conveying  information  to  the  public,  this  being  a  concern  of  a  public  nature. 
A  noie  of  the  case  of  Curry  v.  Waller  was  then  read,  in  which  his  Lordship  ad- 
milted  the  distinction,  and  received  such  evidence. 

Evre,  C.  J.  said,  he  believed,  in  that  case,  he  admitted  the  evidence  in  order 
to  show  ihat  the  defendant  had  not  in  fact  published  a  libel,  he  having  only  pub- 
lished the  proceedings  of  a  court  of  justice,  which  the  court  afterwards  determined 
to  be  no  libel  in  point  of  law  ;  but  he  would  not  deny  but  he  might  also  have 
received  it  in  mitigation  of  damages :  for  though  he  had  never  known  the  evid- 
ence given  in  an  action  for  a  libel,  yet  he  had  always  understood,  that  in  an  action 
for  words  the  defendant  might,  in  miiigalion  of  damages,  give  any  evidence  s.'iorf 
of  such  asvjould  be  a  comjilet".  defence  to  the  action,  had  a  justification  been  pleaded 

The  defendant  then  called  Mr.  Ford,  a  magistrate,  to  prove  that,  on  the  exam- 
ination of  the  plaintiff  before  him,  he  admitted  that  he  had  received  five  guineas 
for  conveying  a  letter  to  the  Duke,  and  the  Duke  himself  being  examined,  said, 
that  thinking  the  plaintiflf  had  misconducted  himself  in  lliat  respect,  he  had 
discharged  him  from  his  service, 
(y)  2  Camp.  251,     Supra  89, 

[1]  The  principle  advanced  in  Knohell  v.  Fuller,  and  recognized  as  sound  law 
in  the  Earl  of  Leicester  v.  Walter,  that  a  defendant  may,  in  mitigation  of  dam- 
ages, gire  any  evidence  short  of  such  as  would  be  a  complete  defence  to  the  action, 
had  ajusljication  been  pleaded  has  in  England  a  wider  influence  than  the  mere 


EVIDENCE  IN  MITIGATION.  97 

There  seems  to  be  no  well-founded  distinction  as  to  the  admission 
^[general  evidence  oi  character,  Avhether  the  defendant  has  simplj 

regulation  of  the  proof  as  to  the  character  of  the  plaintiff;  it  extends  to  the 
admisssion  in  evidence  of  all  thefacls  and  circumstances  of  the  case  which  can 
have  an  influence  in  guiding  the  jury  in  determining  the  quo  animo  the  words 
are  spoken,  and  thus  measuring  the  damages  to  be  awarded  to  the  plaintiff. 
Mr.  Starkie  feels  embarrassed  by  the  principle  in  the  broad  terms  in  which  it  is 
laid  down  in  Knobell  v.  Fuller,  considering  it  as  interfering  with  the  rule  of 
Underwood  v.  Parkes,  that  the  truth  of  the  imputation  cannot  be  given  in  evi- 
dence under  the  general  issue,  but  that  it  must  be  specially  pleaded,  to  render 
this  evidence  admissible.  The  practice,  he  says,  would  be  attended  with  all  the 
hardship  and  inconvenience  which  would  result  from  admitting  a  complete  justi- 
fication under  the  general  issue,  for  the  plaintiff  would  be  equally  liable  to  sur- 
prise, and  as  little  able  to  meet  the  charge  in  the  one  case  as  the  other.  The 
courts  in  this  country  have  taken  the  same  view  of  this  question,  holding  that 
evidence  tending  to  prove  the  truth  of  the  charge,  or  proof  of  particular  facts 
forming  links  in  the  chain  of  circumstantial  evidence  against  the  plaintiff,  to  es- 
tablish the  truth  of  the  charge  cannot  be  received  under  the  general  issue  in 
mitigation  of  damages,  Warmouth  and  wife  v.  Cramer,  3  Wendell  3!)j  ;  Oil- 
man V.  Lowell,  8  Id.  573  ;  Purple  v.  Horton,  13  Id.  9  ;  Bodwell  v.  Swan,  3  Pick. 
277  ;  Treat  v.  Browning,  4  Conn.  R.  414,  and  Chealwood  v.  Mayo,  5  Munf,  16. 
Admitting  this  view  of  the  rule  of  Knobell  v.  Fuller,  to  be  correct  whilst  the 
defendant  attempts  to  justify,  it  is  not  perceived  how  it  interferes  with  the  prac- 
tice of  the  courts,  both  of  England  and  this  country,  to  receive  evidence  of  the 
facts  and  circumstances  of  the  case,  for  the  purpose  of  enabling  the  jury  to  pass 
upon  the  quo  animo  the  words  were  spoken,  or  publication  made  and  understand- 
ingly  assess  the  damages  which  the  defendant  ought  to  pay.  East  v.  Chapman, 
1  Moody  and  Malkin  4G  ;  Saunders  v.  Mills,  6  Bing.  213  ;  Chalmers  v.  Shack- 
ell,  6  Carr.  &  Payne  475;  Charlton  v.  Walton,  6  Carr.  and  Payne  385.  If  the 
facts  offered  to  be  proved  would  establish  or  have  a  tendency  to  establish  the 
truth  of  the  charge,  and  the  defendant  has  omitted  to  plead  specially,  the  evi- 
dence of  course  must  be  rejected  ;  but  if  all  intention  to  prove  the  truth  of  the 
charge  is  disclaimed,  and  the  evidence  is  offered  solely  fur  the  purpose  of  giving 
a  character  to  the  malice  which  the  law  implies  from  the  falsity  of  the  charge  ; 
or  in  other  words,  to  show  that  the  defendant  did  not  act  wantonly  and  under 
the  influence  of  actual  malice,  it  cannot  be  rejected  consistent  with  the  principles 
of  equity  and  justice,  upon  which  the  action  for  defamation  is  based.  So  the 
law  is  supposed  to  be  conceded  by  the  court  in  Gilman  v.  Lowell,  8  Wendell 
582,  and  also  in  Mapes  v.  Weeks,  4  Id.  H62,  and  Root  v.  King,  7  Co  wen  633. 
See  vol.  I  p.  455,  n.  [I]  and  same  vol.  p.  456,  n.  [1]  for  an  enumeration  of  cases 
in  which  the  facts  and  circumstances  of  the  case  may  be  shewn  under  the  plea  of 
the  general  issue. 

Vol.  11.  72 


97  CIVIL  REMEDY . 

pleaded  the  general  issue,  or  has  pleaded  a  justification  as  well  as 
the  general  issue  ;  for  the  object  of  such  evidence  is  to  diminish  the 
damages,  which  he- is  entitled  to  do,  though  he  fail  to  establish  his 
justification  (r)  [2]. 

(r)  Lord  Leicester  v.  Walter,  2  Camp.  251.  1  M.  &  S.  284.  Rodriguez  v. 
Tadmiie,  2  Esp,  C.  720.    Vide  supra  89. 

[2]  Ii  is  believed  after  a  diligent  examination,  that  it  never  has  been  decid- 
ed, either  at  nisi  prius  or  in  bank,  except  in  the  case  of  Snovvdon  v.  Smith,  1 
Maule  and  Sel.  287,  n.  that  a  Defendant  in  an  action  of  slander  is  not  at  liber- 
ty, under  the  plea,  of  the  general  issue,  to  give  evidence  in  mitigation  of  dam- 
ages, where  with  that  plea,  he  has  pleaded  a  plea  of  justification,  but  failed  to 
establish  it  by  proof  There  are  abundant  dicta  to  that  effect,  but  no  decisions. 
In  Snowdon  v.  Smith,  the  defendant  offered  to  give  evidenceof  rwmorsof  a  crime 
committed  by  the  plaintiff,  like  that  imputed  to  him,  and  Chambre,  J.  refused 
to  receive  it,  because  the  defendant  had  put  the  issue  upon  the  truth  of  the  charge. 
In  Kirkman  v.  Oxley,  however,  which  was  an  action  for  words  charging  the 
plaintiff  with  a  larceny.  Heath,  J.  allowed  the  defendant,  who  had  justified, 
to  give  evidence  of  the  plaintiff's  general  character  in  mitigation  of  damages; 
Lincoln  Sum.  Assizes,  1815,  reported  in  1  Phill.  Ev.  147,  n.  2,  third  London 
ed.  1817.  Again  :  in  Mawbray  v.  Barker,  where  a  justification  was  pleaded, 
together  with  the  general  issue,  general  evidence  was  admitted  by  Lord  Tent- 
EKDEN,  at  the  Lincoln  Sum.  Assizes,  1826,  as  the  safer  course  :  reported  in  2 
Phill.  Ev.  250,  n.  3,  Gould's  ed.  of  1839,  a  copy  of  the  seventh  English  edi- 
tion, printed  in  1829.  The  decision  of  Snowdon  v.  Smith,  which  was  a  nisi 
prius  case,  is  thus  not  only  over-balanced  by  two  other  nisi  prius  cases,  but  it 
is  at  war  with  the  first  principles  of  the  law  of  slander,  and  of  the  rules  of 
pleading.  The  defendant  is  allowed  by  statute  to  plead  double — he  may,  if  he 
think  proper  to  do  so,  accompany  his  plea  of  not  guilty  with  a  plea  of  justifi- 
cation. Under  the  former  plea,  he  can  not  only  require  the  plaintiff  to  give  the 
proofs  necessary  to  sustain  the  action,  but  may  shew  the  yac^s  and  circumstan- 
ces of  the  case,  to  satisfy  the  jury  that  the  words  were  spoken  upon  an  occasion 
which  protects  him  from  liability  to  an  action,  either  absolutely  or  conditionally, 
or  to  show  the  quo  animo,  the  words  were  spoken,  or  that  the  plaintiff  was  a 
man  of  sullied  reputation  at  the  time  of  the  speaking  of  the  words,  in  mitiga- 
tion of  damages.  How  then  can  it  be,  that  by  availing  himself  of  the  right 
guaranteed  to  him  by  law,  of  pleading  double,  he  should  lose  the  benefit  of 
both  pleas  if  he  fail  in  establishing  one.  It  is  true  that  in  Jackson  v.  Stetson, 
15  Mass.  R.  57,  such  a  doctrine  was  advanced,  the  court  holding  that  a  plea  of 
justification  not  verified,  relieved  the  plaintiff  from  the  necessity  of  proving  his 
case  under  the  general  issue  ;  but  the  authority  of  that  case  has  never  been 
recognized  by  any  court,  other  than  that  by  which  it  was  pronounced.  In  the 
same  case,  it  was  said  too,  that  by  a  plea  of  justification  not  verified,  the  de- 


EVIDENCE  IN  MITIGATION.  ^'^ 

The  defendant  is  not  allowed  to  prove,  under  the  gen- 
eral issue,  even   in  mitigation   of  damages,  that   *ihe     [  *98    ] 
specific  fact  in  which  the  slander  consists,  and  in  respect 

fendant  is  precluded  from  shovvin-  any  facts  in  mitigation  ;  but  the  opinion  is 
obiter      In  Larned  v.  Buffinton,  3  Mass.  R.  553,  it  %vas  said  that  when  a  defend-    . 
ant  pleads  a  justification,  and  fails  to  verify  his  plea  by  proof,  he  is  not  at  lib- 
erty, under  the  general  issue,  to  show  that  the  words  were  spoken  through  heat 
or  passion,  and  not  from  malice  ;    but  he  may  prove  that  the  plamtifT  himse  f 
occasioned  the  charge,  or  in  other  words  that  the  plaintiff,  by  his  own  conduct, 
gave  cause  of  suspicion,  and  thus  himself  produced  the  mischief  of  which  he 
complained.      This  case,  it  will   be  perceived,  although   cited  to  support  the 
doctiine  for  which  Snowdon  v.  Smith  has  been  quoted,  instead  of  doing  so, 
holds   directly  the  reverse,  for  it  admits  that  notwithstanding  the  failure  to  sup 
port  the  plea  of  justification,  evidence  even  in  bar  of  the  action,  is  admissible 
under  the  general  issue.     Besides,  all  that  was  said  by  the  court  on  this  subject 

''  tnZ  other  hand,  in  Kennedy  v.  Gregory,  1   Binney  85,a  majority  of  the 
jud.es  held  that  evidence  which  by  the  court  was  deemed  evidence  va  rrfSciii^^^ 
waJ admissible,  although  the  defendant  had  pleaded  a  justification,  and  failed   o 
prove  It.     In  Coleman  ..  Southwick,  9  Johns.  R.  46,  evidence  in  mitigation 
was  received  in  an  action  for  a  libel,  although  a  plea  of  justification  had  been 
interposed,  which  was  not  verified  by  proof,  and  so  also  in  Hotchkiss  ^••Latbrop 
iJohns.  R.  288.     In  Root  ..  King.  7  Cowen  613,  632.  633,  evidence  of  the 
genera/ c/.«r«c.er  of  the  planitifif  was  received  on  the  trial  m  ™';^°''-  j{ 
damages,  although  the  defendant  had  pleaded  a  justification  and  which  he  failed 
to  prove.      C.  J.  Savage,  on  the  motion  for  a  new  trial,  after  ad vertmg  to    he 
doctrine  laid  down  in  1  Phiil.  Ev.  147.  on  the  authority  of  Snowdon  ..  Smuh 
that  such  evidence  is  not  admissible  when  the  ^^^f^^^^' ^^  t/^^^^^P;;!" 
issue  the  truth  of  the  charge,  cites  the  ruling  in  Kirkman  v.  Oxley, with  appro 
ba  ion   anl  observes  that  b^  that  case  it  seems  that  bad  character  generally  may 
riewn  under  any  state  of  .leadings.     Chancellor  W-vo..h   in  U.  Coun 
of  Errors  in  the  same  case,  concurred  m  this  opinion,  and  laid  down  the  law  to 
b     tl  a  in  an  action  for  a  libel,  the  defendant  may,  in  ail  cases,  go  into  evidence 
;      lew  character  of  the  plaintiff.    He  observed,  "  Some  of  the  mos  rece^^^^ 
decisions  both  in  this  country  and  in  England  seem  to  be  in  favor  of  alow    g 
evidence  of  general  bad  character,  although  there  is  ^  J-tificat.on.     I  am  dis 
posed  to  defer  to  those  decisions;"  but  the  Chancellor  added  tha     he   was 
'  satisfied  the  rights  of  plaintiffs  and  the  safety  of  those  -^o  are  accused  of  cru^e 
will  not  allow  the  principle  to  be  extended."     4  Wendell  139    140      It  wil  , 
however,  be  perceived  that  all  the  d^cta  on  this  subject,  are  founded  on  the  rui- 
in.  of  Chxmbhe,  J.  in  Snowdon  v.  Smith,  and  that  the  evidence  rejec  ed  m  th  t 
c^e  was  offered  to  show  that  the  character  of  the  plaintiff  was  tarnished  prev,- 


98  CIVIL  REMEDY  : 

of  which  the  action  is  brought,  was  communicated  to  him  by  a 
third  person  (s). 

But  where  the  defendant  has  in  the  libel  referred  to  the  source 
from  which  he  derived  his  information,  he  may,  it  seems,  although 
he  has  not  justified,  prove,  under  the  general  issue,  that  he  did  in 
fact  receive  such  information  Q).  As  where  the  libel  refers  to  a 
newspaper  as  the  medium  of  communication  (i(). 

In  a  late  case  the  defendant  was  allowed  to  injure  of  a  witness 
whether  he  had  not  read  the  substance  of  the  alleged  libel  in  a  pub- 
lic newspaper  (x). 

In  Mullett  V.  Hidton,  (t/),  the  declaration  stated  that  the  plaintiff 
was  about  to  take  a  house,  but  that  the  defendant  in  order  to  prevent 
Lira,  addressed  a  letter  to  the  owner,  containing  the  following  pass- 
age:  "  Mr.  Hullon  cannot  for  a  moment  suppose  that  Mr.  Salter  is 
acquainted  with  the  newspaper  particulars  relative  to  the  party  al- 

ous  to  the  speaking  of  the  words.  The  decision  of  the  judge,  therefore,  neces- 
sarily was  limited  to  the  admissibility  of  the  evidence  for  that  particular  purpose, 
and  did  not  embrace  the  general  doctrine  of  what  evidence  was  admissible  in 
mitigation,  when  the  defendant  had  put  the  issue  upon  the  truth  of  the  charge 
and  failed  to  maintain  it  by  proof  Besides  :  it  is  very  questionable  from  the 
statement  of  the  case  of  Snowdon  w.  Smith,  in  note  (n)  supra  page  89,  whether 
the  principle  supposed  to  have  been  advanced  by  Chambre  J.  was  in  fact  ad- 
vanced by  him  ;  it  seems  that  he  only  held  in  that  case  that  evidence  oi  rumours 
vv'as  inadmissible  in  support  of  a  plea  of  justification. 

In  1849,  the  Legislature  of  New  York  enacted,  that  in  an  action  for  libel  or 
slander  the  defendant  may  in  his  answer  allege  both  the  truth  of  the  matter 
charged  as  defamatory,  and  any  mitigating  circumstances,  to  reduce  the  amount 
of  damages.  And  whether  he  prove  the  justification  or  not,  he  may  give  in  evi- 
dence the  mitigating  circumstances.     Code  as  amended  1849,  ^  1G5. 

A  defendant  failing  in  his  proof  of  justification,  may  offer  evidence  in  mitiga- 
tion of  damages,  Morehead  v.  Jones,  2  B.  Munroe  210. 

So  in  an  action  for  defamation  either  party  may  with  a  view  to  the  damages 

give  evidence  \.o  prove  or  disprove  the  existence  of  a  malicious  motive  ;  but  if  the 

evidence  given  for  that  purpose  by  a  plainiiff,  establishes  another  cause  of  action, 

the  jury  should  be  cautioned   agamst   giving   damages  in  respect  to  such    other 

ause  of  action,  Pearson  v.  Lemaitre,  5  Mann.  &.  G.  700;   6  Scott  N.   R.  607. 

(s)  Mills  V.  Spencer,  Holt's  C.  513. 

{t)  lb.  see  R.  v.  Burdett,  4  B.  &  A.  717. 

(u)  Mullett  V.  Hulton,  4  Esp.  C.  248. 

{x)  Wyait «.  Gore,  1  Holt's  C.  303.  {y)  4  Esp.  248. 


EVIDENCE  IN  MITIGATION.  98 

luded  to  (the  plaintiff)  ;  otherwise  it  is  not  probable  that  Mr.  Salter 

would  introduce  an  acknowledi^ed  *felon,  debauchee,  and 

seducer,  into  the  neighborhood  of  Angel  Row."  [  '99  ] 

Erskine,  for  the  defendant,  contended  that  he  was  at 
liberty  to  go  into  evidence  that  the  plaintiff  had  been,  in  fact,  a 
se<iucer,  not  as  an  answer  to  the  action,  but  in  mitigation  of  dam- 
ages. He  admitted,  that  not  having  ple&ded  the  truth  of  the  words, 
he  could  not  prevent  a  verdict  from  passing  against  the  defendant ; 
but  that,  having  referred  to  newspaper  authority  for  the  words  used 
in  the  letter,  and  not  having  given  them  as  his  own  or  from  his  own 
knowledge,  the  defendant  should  be  at  liberty  to  give  the  fact  in 
evidence  as  coming  from  another  source,  to  which  he  referred  in  his 
letter ;  and  as  the  slander  did  not  proceed  from  him,  it  would  go  in 
mitigation  of  damages. 

Lord  Ellenborough,  C.  J.  said,  that  as  the  pleadings  stood  on  the 
record,  the  evidence  offered  was  inadmissible  as  an  answer  to  the 
action.  The  libel  itself  was  proved,  and  there  was  no  justification 
that  entitled  the  defendant  to  a  verdict ;  but  he  added,  that  as  the 
words  referred  to  a  newspaper,  and  were  so  written  as  a  quotation 
from  a  newspaper,  if  the  newspaper  could  be  produced,  he  would  admit 
it  as  evidence,  as  having  caused  the  defendant  to  adopt  what  he  had 
written  in  the  letter,  he  having  so  referred  to  it  [a  a]  [1]. 

[a  a]  So  when  the  libel  purported  to  be  a  report  of  a  coroner's  inquest,  Lord 
C  J.  Abbott  held  that  what  really  passed  at  the  taking  of  the  inquest  was  evi- 
dence  under  the  general  issue  m  miUyation  of  damages.  Being  short  of  a  justi- 
fication, it  is,  said  the  C.  J.  upon  the  general  principle  admissible  as  governing 
the  dama.es.  East  ..  Chapman,  1  Moody  &  Malkin  46.  So  it  was  held  that 
the  defendant  may  show  in  mitigation  that  he  copied  the  libellous  paragraph 
from  a  public  newspaper,  but  not  ihat  many  other  journals  published  the  same 
statement.     Saunders  v.  Mills,  6  Bingh.  213. 

[1]  Ahhouah  the  proof  adduced  by  a  defendant  in  justification  of  a  charge  of 
foraeiy  falls  Thort  of  establishing  the  special  plea,  it  may  be  taken  into  consider- 
ation in  mitigation  of  damages.  Per  Tindal,  C  J.  in  Chalmers  v.  ShacUell  6 
Carr.  &  Payne  475.  In  an  action  for  a  libel  purpotting  to  be  a  report  of  what 
occurred  bef..re  commissioners  of  inquiry  respecting  corporations,  it  was  held 
that  the  defendant  could  not  give  evidence  of  the  accuracy  of  the  report  as  a 
m^nev  of  justification,  hMiihzt  he  might  give  such  evidence  in  rmligation  oj 
dama'res.     Charlton  v.  Walton,  6  Carr.  &  Payne  385, 


99  CIVIL  REMEDY  ; 

It  is   no   defence    to   shew  that  the  plaintiOF  has   been  in  the 
habit   of  Ubelhng   the   defendant,  but  it   is  evidence,  it  has  been 

In  Morris  v.  Duane,  1  Binney  90,  n.the  defendant  was  allowed  to  give  in  evi- 
dence, in  miti'jation  of  damages,  a  paper  containing  the  libellous  charge,  which 
had  been  in  the  possession  of  a  preceding  editor,  to  whose  establishment  he  had 
succeeded,  for  the  purpose  of  showing  that  the  defendant  had  not  devised  the 
slander.  This  decision  was  approved  in  Coleman  i'.  South  wick,  9  Johns.  R.  49, 
where  C.  J.  Kent  conceded  that  evidence  that  the  defendant  had  been  told  by  a 
third  person,  that  what  was  alleged  to  be  libellous  had  appeared  in  a  public 
newspaper,  would  have  been  admissible  had  it  been  offered  to  be  proved  by  the 
person  giving  the  inforncation,  and  this  although  a  plea  oi  justification  had  beea 
interposed.  So  in  Gilman  v.  Lowell,  8  Wendell  573,  the  defendant  had  spoken 
slanderous  words  of  the  plaintiff,  when  no  occasion  which  the  law  justifies  au- 
thorized him  to  speak  ;  but  still  he  had  cause  to  believe  that  what  he  uttered 
was  the  truth,  and  it  was  held  that  he  should  have  been  permitted  to  show  the 
facts  and  circumstances  of  the  case,  in  mitigation  of  damages.  The  plaintiff, 
against  whom  a  judgment  had  been  rendered  in  a  justice's  court,  to  prevent  the 
issuing  of  an  execution,  had  made  oath  that  he  was  a  freeholder,  and  that  the 
deed  of  his  property  was  duly  recorded.  The  defendant,  on  diligent  search  at 
the  clerk's  office,  not  finding  the  deed  on  record,  charged  the  plaintiff  with  false 
6v\earing.  The  deed  was  in  fact  recorded,  but  the  names  of  the  parties  had  not 
been  entered  in  the  index,  in  consef|uence  of  which,  the  record  of  the  deed  was 
not  found  at  the  time  of  the  search.  On  the  trial,  the  defendant  offered  to  prove 
the  above  facts  in  mitigation  of  damages,  but  the  judge  refused  to  receive  the 
evidence,  and  the  plaintiff  obtained  a  verdict  for  $  250-  A  new  trial  was  grant- 
ed, on  the  ground  that  the  evidence  ought  to  have  been  received  in  mitigation 
of  damages.  C.  J.  Savage,  who  pronounced  the  judgment  of  the  court,  mani- 
festly was  inclined  to  go  farther.  The  facts, he  observed,  go  far  to  dimmish  the 
quantum  of  malice  ;  perhaps  they  show  as  far  as  can  be  done  the  absence  of 
malice;  but  all  that  was  done  was  to  direct  the  evidence  to  be  received  in  mitiga- 
tion. 

There  is  one  other  ground  oi  mitigation  to  which  it  may  be  well  to  advert.  It 
seems  that  an  admission  by  the  defendant  when  interposing  his  plea  that  at  the 
time  of  making  the  slanderous  charge,  he  acted  under  a  mistake  of  facts,  would 
beavailable  in  mitigation  of  damages.  See  the  language  of  the  court  in  Lamed 
V.  Buffiiilon,  3  Mass.  R.  546,  as  qualified  in  Alderman  v.  French,  1  Pick.  19. 
Sje  also  what  was  said  by  C.  J.  Savage  in  Mapes  v  Weeks,  4  Wendell  COS,  and 
the  intimation  of  Nelson,  C  J.  in  Hotchkiss  i'.  Uliphant,  2  Hill,  515,  that  a  with- 
drawal or  recantation  of  the  charges,  by  way  of  atonement,  would  be  admissible 
in  evidence  in  mitigation  of  damages.  In  Starkie's  Ev.  Part  IV.,  p.  882,  it  is 
said  that  a  defendant  indicted  for  publishing  a  libel  was  permitted  to  prove,  with 
a  view  to  the  mitigation  of  punishment,  that  he  stopped  the  sale  of  the  publica- 
tion. 


EVIDENCE  IN  MITIGATION.  100 

•said,  In  miUgation  of  damages  («).  The  latter,  ll0^v-  [  *100  ] 
ever,  of  these  positions  is  too  large,  and  it  seems  that,  at 
most',  the  defendant  cannot  be  allowed  to  do  more  than  prove  the 
publication  of  libels  by  the  plaintitf,  which  are  connected  with  the 
hbel,  which  is  the  subject  of  the  action  (a).  As  where  such  previ- 
ous libels  constitute  the  provocation  to  the  principal  libel  (6)  [1]. 

As  the  defendant,  when  he  insists  upon  the  truth  of  the   imputa- 
tion, must  plead  it  specially,  the  proof  must  of  course  depend  in  a 
great  measure  upon  the  allegations  upon  the  record ;    there  seems 
to  be  little  if  any  difference  between  the  evidence  m  proof  of  a  spe- 
cific charge,  thus  involved  in  a  civil  proceeding,  and  the  evidence 
which  is  essential  to  support  an  indictment  containing  a 
*similar  charge  (c)  [1].     It  may  indeed  happen,  thac     [   101  J 
more  precise  evidence  may  be  necessary  to  support  such 
a  iustification  than  would  be  sufficient  to  sustain  an  indictment,  for 
the  proof,  in  the  former  case,  is  governed  by  the  allegations  in  the 
plea,  and  allegations  in  a  plea  may  frequently  require  precise  proof, 
though  they  would  not  have  done  so  in  an  indictment.    For  instance, 
if  thl  slander  consist  in  charging   the   plaintiff  with  having  stolen 
sovereigns  in  the  plural,  the  plea  must  necessarily  charge  him  in  the 
plural   also,  and  the  defendant  would   fail   in  his  justification    if 
he  could  prove  no  more  than  the  steahng  of  one  ;  but  on  the  trial  of 
an  indictment  for  larceny,  the  variance  would  be  wholly  immaterial 
It  has  been  seen  that,  though  the  slander  be  general,  he  plea  of 
justification  must  be  particular  (c^)-     But  should  the  plamtift,  in- 
(.)  Finnerty  ..  Tipper,  2  Camp.  76.     See  Pasquia's  case  ib.  and  Tabart  v. 

^Z^lT^Cl,^^.^^.  113,  general  evidence  that  the  plaintiff  has 
been  in  the  habit  of  UbelUng  the  defendant  .s  madm.ss.ble.  Finnerty..  Tipper, 
SCamo  76.     Wakeley  v.  Johnson,  1  R.  &  M.  422.  ,        ^    ^  , 

(r?b  It  was  doubted  in  that  case,  by  Abbott,  L.  C.  J.,  whether  general 
evLnce  would  be  admissible  to  prove  the  fact ;  it  seems,  however,  to  be  clear 
in  principle,  that  the  Ubels  themselves  ought  ^^^^^^^o^,.  Exch.  R. 

nl  See  also  Watts   v.   Frazer,  7  Adolph.  &  l^lUs  ^-.i  ,  ^  >^'^"^'' 
e4  '    Be  I,ey  ».  Maynar.,  4  Wendell  336  and  7  Id^  ^"f^^Z^C  it 
Gould  ..  Weed,  12  Wendell  12.  W  Cooke  ..  Field,  3  t.p.  C 

(d)  Supra  vol.  I.  477. 

[1]  Same  doctrine  Woodbeck  v.  Keller,  6  Cowen  118. 


101  CIVIL  REMEDY: 

stead  of  demurring  to  a  plea  for  generality,  take  issue  upon  it,  the 
defendant  -will  still  be  bound  to  prove  the  slander  or  libel  as  stated 
in  the  declaration  with  all  its  circumstances  of  exaggeration  (c)  ; 
even  although  the  plea  merely  state  that  the  matters  alleged  in  the 
supposed  libel  are  true  in  substance  and  effect  (/)  ; 
[  *102  ]  where  a  libel  charged  the  plaintiff  *wiih  having  knocked 
out  the  eye  of  a  horse  and  other  acts  of  cruelty,  and  the 
defendant  pleaded  that  the  matters  contained  in  the  alleged  libel 
were  true  in  substance  and  in  fact,  the  jury  having  fouhd  that  it 
was  true  in  all  particulars,  except  that  the  eye  was  not  knocked  out, 
the  court  held  that  the  plaintiff  was  entitled  to  a  verdict  on  that 
plea  (^).  But  it  would  not  be  necessary  in  such  case  to  prove  cir- 
cumstances which  were  not  ingredients  in  the  slanderous  charge  (A). 

Where  words,  not  contained  in  the  declaration,  are  given  in  evi- 
dence in  order  to  prove  malice,  the  defendant  may,  under  the  gen- 
eral issue,  prove  the  truth  of  those  words  (i). 

The  acquittal  of  the  plaintiff,  on  an  indictment  charging  him  with 
the  same  offence  as  is  specified  in  the  plea,  does  not  preclude  the 
defendant  from  proving  the  truth  of  the  charge  {k),  nor,  indeed, 
does  it  seem  to  be  evidence  at  all. 

Evidence  of  general  good  character  is  admissible  to  rebut  the  pre- 
sumption of  guilt  (Z).  And  the  plaintiff  may  adduce 
[  *103  ]  general  evidence  of  good  'character,  before  any  evi- 
dence to  the  contrary  has  been  adduced  on  the  other 
side  (w). 

Where  the  defendant  justifies,  alleging  that  he  heard  the  words 
from  another  whose  name  he  mentioned  when  he  reported  them,  the 
proof  depends  on  ihe  issue  taken.  Upon  issue  taken  on  the  general 
replication  de  injuria,  &c.,  it  lies  on  the  defendant  to  prove,  that  he 

(e)  Weaver  v.  Lloyd,  2  B.  &  C.  678.  (/)  lb. 

(g)  Weaver  v.  Lloyd,  2  B.  &  C.  678. 
(A)  Edwards  v.  Bell,  1  Binjr.  403.     Supra  v.  I,  p.  483. 
(i)  Warne  v.  Chadwell,  2  Starkie's  C.  457.    Cullisoa  v.  Loder,  B.  N.  P.  10. 
(A)  Enoland  v.  Bourke,  3  Esp.  C.  80. 
(,1)  See  Slarkie's  Law  of  Evidence,  part  iii.  365. 

(m)  King  v.  Waring,  6  Esp.  C.   13.     But  there  the  action  was  brought  by  a 
servant  for  giving  a  false  character.     See  ante,  p.  60,  note  (m) 


EVIDENCE  IN  JUSTIFICATION.  103 

heard  the  very  words  spoken  by  such  third  person,  as  alleged  in  the 
plea,  and  that  on  repeating  them  he  gave  up  his  author  ;  for  the  ob- 
ject of  the  plea  is  to  shew,  that  the  defendant  has  afforded  to  the 
plaintiff  a  certain  cause  of  action  against  another.  It  would  not  be 
sufficient  under  this  issue  to  prove,  that  the  third  person  spoke  the 
words  to  the  same  effect  with  those  alleged  (?i)  [1.] 

In  actions  for  malicious  prosecutions  and  other  special  actions  on 
the  case,  where  the  plaintiff  is  bound  to  prove  express  malice  and 
the  want  of  probable  cause,  the  defendant  is  at  liberty  to  prove  that 
the  fact  was  true,  or  give  any  other  evidence  to  show  probable  cause 
under  the  general  issue,  without  a  special  justificaiion. 
For  this  is  merely  to  repel  the  proof  which  is  *necessary  [  *104  ] 
to  sustain  the  plaintiff's  case  ;  thus,  in  an  action  for 
slander  of  title,  where  the  slander  consists  in  alleging  that  the  plain- 
tiff had  encroached  on  his  landlord's  land,  it  was  htld,  that  the  de- 
fendant was  at  liberty  to  prove  that  encroachments  had  in  fact  been 
made  (o). 

(n)  See  Lord  Northamplon's  case,  12  Rep.  202.  Crawford  v.  Middleton,  1 
Lev.  82.  Maitland  v.  Guiding.  2  East.  425.    Woolnolh  v.  Meadows,  5  Ea.st.  ".GS. 

(o)  Watson  v.  Reynolds,  1  M-  &  M.  1,  and  see  Ilargreave  v-  Le  Breton,  4 
Burr  2422.  Smith  v.  Spooner,  3  Taunt.  24G.  Pitt  v.  Donovan,  1  M.  &  S.  639. 
Supra  vol.  I.  320. 

[1]  See  Vol.  I.  p.  320,  n.  [1]. 


Vol.  ri.  73 


CniPTER    III. 


Proceedings  after  Verdict. 

[  *105  ]  *Where  the  situation  in  which  the  defendant  ^vas  act- 
ing at  the  time  of  speaking  the  ^\-ords,  or  publishing  the 
libel,  ^Yas  such  as  to  rebut  the  implication  of  malice,  and  no  express 
malice  was  proved,  the  court  will,  after  a  verdict  for  the  'plaintiffs 
grant  a  new  trial  (a)  ;  and  this,  even  though  the  defendant  knew 
that  what  he  said  was  not  strictly  true,  provided  the  variation  from 
the  truth  be  immaterial  to  the  interest  stated  to  have  been  affect- 
ed (h).  But  where  the  false  assertion  of  the  defendant  is  material, 
no  new  trial  will  be  granted,  though  the  defendant  had  an  interest  in 
the  subject  matter  affected  (c). 

Where  the  damages  are  so  outrageous  as  to  induce  a  strong  pre- 

Bumption  of  partiality  in  the  jury,  a  new  trial  will  be  granted  in  an 

action  for  slander,  as  well  as  in  other  cases,  though  in 

[  *106  ]     such  an  action  *the  amount  of  the  loss  sustained  from  the 

injurious  act  depends  upon  circumstances  of  all  others 

the  most  appropriate  for  the  calculation  and  assessment  of  a  ju- 

ry  [1]. 

(a)  See  the  observations  of  the  Court  in  Broraage  v.  Prosser,  4  B.  &  C.  247. 

(6)  4  Burr.  2422,  (c)  See  Smith  v.  Spooner,  vol.  i.  p.  317. 

[11  In  Coleman  v.  Southwick,  9  Johns.  R.  51,  Chief  Justice  Kent,  in  an 
action  for  libel  said,  "  The  question  of  damages  was  within  the  proper  and 
peculiar  province  of  the  jury.     It  rested  in  their  sound  discretion  under  all  the 


PROCEEDINGS  AFTER  VERDICT.  106 

In  the  case  of  Lord  Townsend  v.  Dr.  Hughes  (fZ),  which  was  an 
action  for  scandalum  magnatum,  the  ^Yor(^3  were,  "  He  is  an  un- 
worthy man,  and  acts  against  law  and  reason."  The  jury  found  a 
verdict  for  the  plaiutiff  with  £4000  damages.  A  new  trial  was 
moved  for  on  these  grounds  : 

1.  Because  the  witnesses  who  proved  the  words  were  not  persons 
of  credit,  and  that,  at  the  time  when  they  were  alleged  to  be  spoken, 
many  clergymen  were  in  company  with  the  defendant,  and  heard  no 
such  words  spoken. 

2dly.  Because  one  of  the  jury  confessed  that  they  gave  such 
great  damages  to  the  plaintiff,  not  that  he  was  damnified  so  much, 
but  that  he  might  have  the  greater  opportunity  to  show  himself 
noble  in  the  resisting  of  them. 

3dly.  (Which  was  the  principal  reason,)  because  they  were  ex- 
cessive. 

North,  C.  J.  and  Wyndham  and  Scroggs,  Justices,  were  of  opin- 
ion, that  no  new  trial  ought  to  be  granted,  that  in  a  civil  action, 
where  the  words  themselves  are  actionable,  without  an 
averment  of  special  damage,  the  jury  ought  to  take  *into  [  *107  ] 
consideration  the  whole  of  the  damage  which  the  party 
might  sustain,  since  he  could  not  bring  a  fresh  action  ;  that  it  was  im- 
possible for  the  court  to  tell  what  value  to  set  upon  the  honour  of 
the  plaintiff;  that  the  jury  were,  by  law,  judges  of  the  damages  ; 
and  that  it  would  be  very  inconvenient  to  examine  upon  what  ac- 
count they  gave  their  verdict. 

Atkins,  J.  dissented  from  his  brethren,  conceiving  that  the  court 
ought  to  compare  the  words   with  the  damages,  and  to  consider 

(J)  2  Mod.  150, 
circumstances  of  the  case,  and  unless  the  damages  are  so  outrageous  as  to  strike 
every  one  with  the  enormity  and  injustice  of  them,  and  so  as  to  induce  the 
court  to  believe  that  the  jury  must  have  acted  from  prejudice,  partiality  or  cor- 
ruption, we  cannot  consistently  with  the  precedents,  interfere  with  the  verdict. 
It  13  not  enough  to  say  that  in  the  opinion  of  the  court  the  damages  are  too  high, 
and  that  we  would  have  given  much  less.  It  is  the  judgment  of  the  jury  and 
not  the  judgment  of  the  court  which  is  to  assess  the  damages  in  actions  for  per- 
sonal torts  and  injuries.  See  also  Southwick  v.  Stevens,  10  Johns.  R.  443 ; 
Coffin  V.  Coffin,  4  Mass.  R.  1  ;  Neal  v.  Lewis,  2  Bay's  R.  204. 


107  CIVIL  REMEDY : 

whether  they  bore  any  proportion.  He  also  cited  the  case  of  Guri' 
ston  V.  Wood,  where  the  plaintiff,  in  an  action  on  the  case  for  calling 
him  a  bankrupt,  recovered  £1500  damages  ;  and  the  court  granted 
a  new  trial,  because  the  damages  were  excessive. 

In  the  same  case  it  was  said  by  Scroggs,  J.  that  had  the  jury  given 
but  one  penny  damages,  the  plaintiff  could  not  have  obtained  a  new 
trial  in  hopes  to  increase  them. 

When  the  plaintiff's  title  to  recover  does  not  appear  perfect  upon 
the  face  of  the  record,  the  defendant  may  take  his  objection,  either 
by  moving  in  arrest  of  judgment  within  the  usual  time,  or  by  bring- 
ing a  writ  of  error. 

It  has  already  been  seen  what  are  the  rules  to  be  observed  in  the 

construction  of  the  defendant's  expressions ;  that   they  are  to  be 

taken  according  to  their  plain  and  obvious  meaning,  and 

[  *108  ]     in  the  *sense  in  which  the  hearers  or  readers  understood 

them. 

After  a  verdict  for  the  plaintiff,  by  which  the  defendant's  act, 
meaning, 'and  intention,  have  been  ascertained  to  correspond  with 
the  statement  upon  the  record,  the  courts  will  not  listen  to  trivial  ex- 
ceptions, but  require  the  party  objecting  to  point  out  (e)  a  substan- 
tial olgection  upon  the  face  of  the  proceedings. 

And,  in  general,  where  words  may  be  taken  in  a  double  sense, 
the  court,  after  a  verdict,  will  always  construe  them  in  that  sens© 
which  may  support  the  verdict  (/). 

Where  there  are  several  counts  in  the  declaration,  and  entire  dam- 
a^es  are  given,  if  one  count  be  defective,  judgment  must  be  arrest- 
ed for  the  whole,  since  it  is  impossible  for  the  court  to  apportion 
the  damages,  and  to  say  what  abatement  ought  to  be  made  in  respect 
of  the  vicious  count  ((/)  [Ij. 

(e)  See  the  opinions  of  Lord  Ellenborough,  C,  J. ;  Le  Blanc,  J.  ;  Lord 
Mansfield,  C.  J.;  Parker,  C.  J.  ;  Lord  Holt,  C.  J.;  Pratt,  J.;  Buller,  J.; 
and  De  Grey,  C  J.  as  cited  above,  vol.  I.  p.  6i,  &c. 

(/)  8  Mod.  -240.  (g)  Holt  V.  Scholefield,  6  T,  R.  094. 

[I]  The  law  is  held  otherwise  in  New- York  where,  if  the  judge  certifies  that 
the  evidence  applied  only  lo  the  good  counts,  the  plainliflT  may,  on  payment  of 
costs,  enter  judgment,  Stafford  v.  Green,  1  Johns.  R.  505  ;  and  even  where,  the 
judge  certifies  that  the  evidence  applied   as  well  to  the  good  as  to  the  defective 


PROCEEDINGS  AFTER  VERDICT.  108 

And  the  same  rule  holds  in  case  one  count  in  the  declaration  con- 
tain words  averred  to  have  been  spoken  at  different  times,  some  of 
which  are  not  actionable.  As,  if  at  one  time  the  defend- 
ant call  *the  plaintiff  "  traitor,"  and  at  another  tims  "  ar-  [  *109  ] 
rant  knave  and  coz3ner  ;"  and  the  plaintiff  allege  (/<)  the 
words  to  have  been  spoken  at  different  times,  as  several  causes  of  ac- 
tion, if  the  jury  assess  the  damages  generally,  judgment  will  be  ar- 
rested. 

But  if  actionable  words  be  averred  to  have  been  spoken  at  the 
same  time  with  others  not  actionable,  the  latter  are  considered  (i)  as 
laid,  merely  in  aggravation.  If  the  declaration  consist  of  several 
counts,  in  one  of  which  the  words  are  not  actionable,  and  no  special 
damage  be  averred,  or,  supposing  it  to  be  averred,  the  finding  of  the 
.jury  as  to  the  special  damage  be  for  the  defendant,  and  as  to  the  rest 
generally  for  the  plaintiff,  the  judgment  would  be  erroneous,  and 
might  be  avoided  by  motion,  or  reversed  by  writ  of  error  (^). 

Where,  therefore,  there  is  any  doubt  as  to  the  validity  of  any 
one  count,  {I),  it  is  a  matter  of  prudence  to  have  the  damages  as- 
sessed severally,  or  to  take  a  verdict  upon  the  other  counts  only. 
In  (w)  Rich  v.  Holt,  the  words  laid  down  as  spoken  of 
the  plaintiflfat  one  time  were,  "  You  *are  a  paltry  lawyer,  [  *110  ] 
and  use  to  play  on  both  hands  ;"  at  another,  "  lie  is  a  fur- 

(A)  Cro.  Eliz.  329.     Cro.  Car.  236,  237,  238.     2  Wils  185. 
(j)  3  Wils  185.     Lloyd  r.   Morris,   Willes  Rep  443.     Roll.  Ab.  576.  Moor 
142,  708.     Cro;  Eliz.  3-28.  788.     1  Buls.  37. 
(k)  See  the  cases,  2  Will.  Saund,  171.  d. 
(/)  Burnet  v.  Wells,  12  Mod.  420.  (m)  Cro.  J.  267. 

■counts,  the  judgment  will  not  be  arrested,  but  the  verdict  will  be  amended  so  as 
to  apply  il  to  the  good  counts.  In  this  the  court  here  not  only  concurred  wiili 
Lord  Mansfield  in  his  condemnation  of  the  old  rule,  as  will  be  seen  in  Grant  v. 
Astle,  Dougl.  7-29,  but  went  further  and  refused  to  be  bound  by  it.  See  Union 
Turnpike  Co.  v.  Jenkins,  1  Caines  392  ;  Cooper  v.  Bissell,  15  Johns.  R.  318  ; 
Sayre  f.  Jewett,  12  Wendell  135.  The  same  rule  prevails  in  South  Carolina, 
•where  the  court  say  that  they  do  not  concur  with  the  King's  Bduch  of  Knyiand 
on  this  subject,  Neal  t).  Lewis,  2  Bay  204,  and  Hogg  ■!?.  Wilson,  1  Nolt  and 
McCord  216.  So  in  Pennsylvania,  llie  court  direcis  the  verdict  to  be  entered 
upon  the  good  counts,  Kennedy  v.  Lowry,  1  Binney  397;  but  this  cannot  be 
done  on  a  writ  of  error;  Shafer «.  Kintzer,  1  Binney  537;  Cooper  u.  Bissell, 
15  Johns.  R.  318.     See  note  [1]  p.  112,  infra. 


IIQ  CIVIL  REMEDY  : 

therer  and  maintainer  of  felonies."  The  defendant  as  to  all  the 
^ords,  except  those  in  italics,  pleaded  not  guilty,  and  as  to  those  a 
jas:ification.'  The  plaintiff  replied  de  wjuria  propria,  ^-c.  The 
jury,  upon  the  first  issue,  found  the  whole  of  the  words,  and  asses- 
sed  damages  for  the  whole  ;  they  likewise  found  the  second  issue  for 
the  plaintiff,  assessing  separate  damages.  The  court,  on  motion  in 
arrest  of  judgment,  decided  that  the  words,  "  You  are  a  paltry  law- 
yer,"  were  not  actionable,  but  held  that  the  plaintiff  was  entitled  to 
judgment  on  the  first  issue.  It  should  seem,  however,  that  the  plain- 
tiff was  not  entitled  to  judgment  under  the  first  assessment,  suppos- 
ing the  decision  to  have  been  correct,  that  the  words,  "  You  are  a 
paltry  lawyer,"  were  not  actionable. 

For  the  words  to  be  considered  under  the  first  issue  of  not  guilty, 
were  the  two  sets,  "  You  are  a  paltry  lawyer,"  and  "  He  is  a  furth- 
erer  and  maintainer  of  felonies,"  the  words  in  italics  not  coming 
under  the  consideration  of  the  jury,  since  they  were  confessed ; 
the  damages  under  the  first  assessment  were,  therefore,  partly  given 
for  the  words,  "  You  are  a  paltry  lawyer,"  which  were  held  not 
actionable. 

It  is  said  to  be  the  practice  in  the  Court  of  Common 
[  *111  ]  Pleas,  to  award  a  venire  de  novo  where  'judgment  is  ar- 
rested in  such  case,  upon  payment  of  costs,  in  order 
that  the  plaintiff  may  sever  his  damages  (n).  But  in  the  case  of 
Holt  v.  Schole field  (o),  in  the  King's  Bench,  a  venire  de  novo  was 
refused. 

In  the  case  of  Beevor  v.  Hides  (p),  Bathurst,  Justice,  expressed 
an  opinion,  that  where  the  words  in  one  count  were  not  actionable, 
yet  that  the  postea  might  be  amended,  and  a  verdict  as  to  thoso 
words  entered  for  the  defendant,  upon  the  Judge's  certifying  that 
no  evidence  was  given  of  them  at  the  trial. 

But  Lord  Camden  said  it  would  be  very  dangerous,  after  a  ver- 
dict of  twelve  men  recorded  by  the  Court,  to  refer  to  the  Judge's 

(7i)  2  Will.  Saund.  171  d.     Barnes  478, 480. 

(o)  6  T.  R.  fil.     Sed  vid.  Eddows  v,  Hopkins,  Doug.  37G. 

(p)  2  Wils.  300. 


PROCEEDINGS  AFTER  VERDICT.  Ill 

notes  in  order  to  alter  it,  and  he  thought  there  was  no  precedent 
of  such  a  case,  and  that  the  verdict  could  not  be  varied. 

The  general  practice  however  is,  where  general  damages  have 
been  given,  and  it  appears  that  the  plaintiff  is  entitled  to  recover 
upon  one  count,  though  not  upon  others,  either  to  amend  the  postea, 
which  is  done  where  it  clearly  appears  that  no  evidence 
was  given  on  the  defective  'counts  (5),  or  by  awarding  [  *112  ] 
a  V.  f.  de  novOf  where  such  evidence  has  been  given,  in 
order  that  the  plaintiflf  may  ascertain  to  what  damages  he  is  enti. 
tied  for  so  much  of  his  cause  of  complaint  as  will  support  damages. 
It  does  not  distinctly  appear,  upon  what  principle  actions  for  slan- 
der form  an  exception  to  the  general  rule  [1]. 

(q)  This  is  now  the  ordinary  practice,  and  it  is  done  by  the  judge  who  tried 
the  cause  upon  summons  at  chambers. 

[1]  See  Hopkins  v.  Beedle,  1  Caines  347  ;  Lyle  v.  Clason,Id.  583  ;  I^ivings- 
ton  V.  Rogers,  Id.  587. 


CEAPTER  IV. 


Op  Costs. 

[  'lis  ]  *Bt  the  21  Jac.  1.  c.  16,  it  is  enacted,  that  "  in  all 
actions  upon  the  case  for  slanderous  words,  to  be  sued  or 
prosecuted  in  any  of  the  courts  of  record  at  Westminster,  or  in  any 
court  -whatsoever,  that  hath  power  to  hold  plea  of  the  same  ;  if  the 
jury,  upon  the  trial  of  the  issue  in  such  action,  or  the  jury  that  shall 
inquire  of  the  damages,  do  find  or  assess  the  damages  under  forty 
shillings,  then  the  plaintiff  or  plaintiffs  in  such  action  shall  have  and 
recover  only  so  much  costs  as  the  damages  so  given  or  assessed 
an\ount  unto,  without  any  further  increase  of  the  same ;  any  law, 
statute,  or  usage,  to  the  contrary  notwithstanding."  [1] 

This  statute,  it  has  been  held,  does  not  extend  to  actions  of  scan- 
dalum  magnatum,  nor  to  those  where  the  special  damage  is  the  gist 
of  the  action,  as  in  case  of  slander  of  title  (a),  nor  to  actions  for 

libel  (6). 
[-*114  ]         *But  where  the  words  are  in  themselves  actionable, 
the  case  is  within  the  statute,  though  special  damage  be 
averred ;  for  the  plaintiff  is  at  all  events  entitled  to  a  verdict  for 

/*  (a)  2  Bl.  1062.  2  Ld.  Raym.  1588.  Prac.  Reg.  111.  Cro.  Car.  140. 
Jon.  196.  2  Ld.  Ray.  931.  1  Salk.  206.  7  Mod.  129.  Willes  438.  Barnes  132, 
2  H.  B.  531.  3  Burr.  1688.  1  Str.  645. 

{b)  Hall  V.  Warner,  T.24  G.  3.  Tidd.  861.  Sed  vide  note  [1]  supra. 

[1]  In  New- York,  in  an  action  for  slanderous  words  or  for  a  libel,  brought 
in  the  Supreme  Court,  unless  the  plaintiff  obtained  a  verdict  for  a  sum  exceed- 
ing fifty  dollars,  he  recovers  no  more  costs  than  damages,  2  R.  S  509,  ^  6. 


COSTS.  114 

the  actionable  words,  -without  proving  the  special  damage  ;  and  if 
he  were  in  such  case  entitled  to  costs,  where  the  damages  were  un- 
der forty  shillings,  the  statute  might  in  all  cases  be  evaded  by  a  sug- 
gestion of  special  damage.  This  construction  is,  however,  not  free 
from  inconvenience  ;  since  where  special  damage  has  actually  ac- 
crued, the  eircumstances  of  the  words  being  in  themselves  actionable, 
may  operate  to  the  plaintiff's  disadvantage,  and  he  may  be  placed 
in  a  worse  situation,  by  that  very  presumption  of  law  which  was  in- 
tended for  his  advantage. 

And  where  it  clearly  appears,  as  by  a  special  verdict  and  separate 
assessment,  that  the  special  damage  was  actually  considered  by  the 
jury,  it  seems  reasonable  'that  the  plaintiff  should  have  full  costs, 
though  the  damages  do  not  reach  the  statutable  limit  (c). 

Where  the  words  are  actionable,  and   other  matter  likewise  ac- 
tionable is  stated  as  a  distinct  injury,  and  not  as  a  mere  consequence 
of  the  words,  the  plaintiff  is  entitled   to  full   costs ;  as 
*where  the  declaration,  after  stating  the  words  imputing     [  *115  ] 
felony,  averred  that  the  defendant  procured  the  plaintiff 
to  be  imprisoned  (tZ). 

Where  there  are  different  counts  in  the  declaration,  some  contain- 
ing wordst  not  actionable,  and  others  containing  actionable  ones,  and 
special  damages  be  laid  referring  to  all  the  counts,  then  the  plaintiff 
will,  under  a  general  verdict,  be  entitled  to  full  costs.  For  some 
part  of  the  damages  assessed  must  have  been  given  in  respect  to  the 
consequential  damage  (e). 

The  statute  extends  to  damages  found  under  a  writ  of  inqui- 

rj(/). 

It  has  been  held  that  the  statute  extends  to  inferior  courts,  which 
hold  pleas  to  a  less  amount  than  forty  shillings  only  (</).  But  by 
the  St.  58  G.  III.  c.  30,  s.  2,  in  all  actions  for  slanderous  words,  in 
any  court  which  hath  not  jurisdiction  to  hold  plea  to  the  amount  of 
forty  shilhngs  in  such  suits,  if  the  jury  assess  the  damages  under 

(c)  1  Vent.  93.     1  Mod.  31.     2  Keb.  589. 

(d)  Sir.  G45.  Ld.  Ray.  15S8.     Cro.  Car.  163.     Cro.  Car.  307. 
(e)2H.  B.  531.  (/)2Str.  034 
ig)  Tidd's  Prac.  975,  7th  ed.     1  Ld.  Ray.  181.     Hull,  on  Costa,  38. 

Vol.  II.  74 


115  CIVIL  REMEDY  : 

thirty  shillings,  the  plaintiff,  shall  recover  only  so  much  costs  as  the 
damages  so  given  or  assessed  shall  amount  to,  wiihout  farther  in- 
crease. 

The  22(1  and  23d  C.  2,  c.  9,  is  very  general  in  its 
[  *116  ]  terms,  -which  comprehend  "  all  personal  actions."  *By 
this  statute  it  is  enacted,  that  in  such  actions,  wherein  the 
judge  at  the  trial  of  the  cause  shall  not  find  and  certify  under  his 
hand,  upon  the  back  of  the  record,  that  an  assault  and  battery  was 
suflBciently  proved  by  the  plaintiff  against  the  defendant,  or  that  the 
freehold  or  title  of  the  land  mentioned  in  the  declaration  was  chiefly 
in  question,  the  plaintiff  in  case  the  jury  shall  find  the  damages  to 
be  under  the  value  of  forty  shillings,  shall  not  recover  more  costs 
than  damages.  At  first  it  seems,  that  the  statute  was  held  to  ex- 
tend to  all  personal  actions  (^)  ;  but  it  appears  to  be  now  settled 
that  it  is  confined  to  actions  of  assault  and  battery,  and  for  local 
trespasses,  wherein  it  may  be  possible  for  the  Judge  to  certify,  that 
the  freehold  or  title  to  the  land  was  chiefly  in  question  (A). 

This  statute,  therefore,  does  not  affect  the  present  class  of  actions. 

And  since  the  case  of  slander  is  not  considered  to  be  within  the 
latter  statute,  a  justification  does  not  entitle  the  plaintiff  to  full  costs, 
where  the  damages  are  below  forty  shillings  (i).  # 

(h)  2  Keb.  849.     3  Keb.  121,  247. 

(h)  See  Tidd's  Prac.  (4  Edn.)  8G1  where  the  authorities  on  the  subject  are 
collected. 

(0  Halford  v.  Smith,  4  East.  567.     Barnes  128.  2  Wils.  158. 


CnAPTER  V. 


Of  the  Writ  of  Prohibition. 


*A  PROHIBITION  to  the  Ecclesiastical  Court  is  ground-      [  'IIT  ] 
ed  either  upon  a  defect  in  their  jurisdiction  or  upon  some 
irregularity  in  the  course  of  their  proceedings. 

The  power  of  these  courts,  in  cases  of  defamation,  was  expressly 
recoo-nized  by  13  E.  1,  st.  4.  "  In  cause  of  defamation,  it  hath  been 
granted  already,  that  it  shall  be  tried  in  a  Spiritual  Court,  when  monei/ 
is  not  demanded,  but  a  thing  done  for  punishment  of  sin  ;  in  which 
case  the  spiritual  judge  shall  have  power  to  take  knowledge,  notwith- 
standing the  king's  prohibition." 

Whence  it  appears  that  these  courts,  before  the  passing  of  tho 
statute,  had  the  same  jurisdiction  ;  and  also  that  the  extent  of  tho 
jurisdiction  was  to  deal  out  punishment  pro  salute  animce  (a)  and 
not  to  award  any  temporal  compensaiion  in  the  way  of  damages  for 
loss  of  character  (6).  And  the  latter  position  appears 
Btill  more  clearly  *from  the  statute  of  Ariiculi  Cleri  (c)  ;  [  *118  ] 
'which  enacts,  that  "  In  defamations,  prelates  shall  correct, 
the  king's  prohibition  notwithstanding;  first  enjoining  a  penance  cor- 
poral, which,  if  the  offender  will  redeem,  the  prelate  may  freely 
receive  the  money,  though  the  king's  prohibition  be  showed."  ^ 

Under  these  statutes  it  has  been  held,  that  no  suit  is  maintainable 
in  the  Ecclesiastical    Courts  for   any  slander  (i)  not  of  spiritual 

(a)  2  Inst.  492.  (b)  lb.  (0  9  Edw.  2,  c.  4. 

(J)  2  Barn.  Ecc.  L.  120.      Ld.  Ray.  212,  397.      God.   517.      2   Salk.  692, 
11  Mod.   112. 


118  PROHIBITION. 

cognizance.  So  that  an  imputation  of  perjury  is  not  a  ground  for 
proceeding  in  the  Spiritual  Court. 

In  the  instance  cited,  the  partj^  has  his  remedy  by  action  at  Com- 
mon Law  ;  but  provided  the  slander  do  not  impute  any  offence 
cognizable  by  the  Spiritual  Court,  no  punishment  can  be  inflicted  for 
it  by  such  court,  though  the  slander  should  not  be  a  ground  of  ac- 
tion at  Common  Law  (^).  Thus  a  suit  was  instituted  in  the  Spirit- 
ual Court  for  calling  the  plaintiff  a  false  knave,  and  a  prohibition 
was  granted.  And  it  was  said  (/),  that  though  these  words  do  not 
imply  any  offence  of  which  the  temporal  law  takes  cog- 
[  *119  ]  nizance,  yet  being  also  not  of  spiritual  cognizance,  *the 
Temporal  Courts  will  grant  a  prohibition  that  the  Ecclesi- 
astical Courts  (^)  may  not  exceed  their  jurisdiction. 

And  the  same  rule  holds  though  the  words  be  spoken  of  an  eccle- 
siastical person.  The  words  spoken  of  a  parson  were,  "  He  (A)  has  no 
sense ;  he  is  a  dunce  or  blockhead,  and  deserves  to  have  his  gown 
stripped  over  his  ears."  And  it  was  held  that  the  defendant  was 
not  punishable  in  the  Spiritual  Court ;  for  a  parson  is  not  punishable 
in  that  court  for  being  a  knave  or  a  blockhead  more  than  any  other 
man  ;  and  it  was  said,  that  if  the  parson  should  be  deprived  for  want 
of  learning,  he  must  bring  his  action  at  Common  Law  (i). 

So  it  has  been  held  that  to  call  a  dean  "•  a  knave"  was  not 
suable  in  the  Spiritual  Court. 

But  where  words  (1c)  spoken  of  a  parson  impute  that  which,  if 
true,  would  subject  him  to  censure  in  the  Ecclesiastical  Court,  he  is 
entitled  to  sue  there. 

Where  words  of  spiritual  cognizance  are  coupled  with  terms  of 

abuse  which  are  not  in  themselves  actionable»in  the  tern- 

[  *120  ]     poral  courts,  no  prohibition  will  be  granted  (/)  ;  so  *that 

no  prohibition  lies  in  a  suit  for  the  words,  "  he  is  a  cuck- 

oldy  knave  (???)  ;"  and  the  rule  is  the  same  though  it  should   be 

(e)  2  Ins.  493.  (/)  Ibid. 

{g)  2  Ins.  695.  (A)  Coxeter  v.  Parsons,  Salk.  692. 

(i)  Holt.  R.  593.     Nelson  v.  Hawkins,  Dean  of  Chichester. 

{k)  Clark  v.  Price,  11  Mod.  208.  {I)  2  Salk.  692. 

(m)  Gobbet's  case,  Cro.  Car.  339.     Golds.  172- 


PROHIBITION.  120 

suggested    that    the  words  were   spoken  through    heat  and   pas- 
sion (?0- 

Where  the  words  theraselves  are  of  mere  spiritual  cognizance,  but 
special  damage  ensues,  for  which  an  action  is  brought  in  a  temporal 
court,  it  seems  that  no  prohibition  is  grantable. 

In  the  case  of  Evins  v.  Broivn  (o),  where  the  words  were  of 
mere  spiritual  cognizance,  a  prohibition  was  moved  for  upon  a  sug- 
gestion that  the  plaintiff  below  had  brought  an  action  at  law  for  the 
words,  grounded  upon  special  damage  sustained  by  reason  of  the  de- 
fendant's speaking  them.  It  was  contended,  that  this  was  like  the 
case  where  one  calls  a  woman  a  whore  and  thief:  in  that  case  she 
shall  not  have  an  action  in  the  Ecclesiastical  Court  for  the  words, 
though  she  might  for  the  word  whore  ;  because  it  being  joined  with 
the  word  thief,  an  action  lies  at  Common  Law  for  the  words.  That 
in  such  case,  the  words  could  not  be  split,  and  an  action  brought  at 
law  for  the  word  thief,  and  a  suit  in  the  Ecclesiastical  Court  for  the 
word  whore  ;  so  that  here,  though  the  words  are  proper- 
ly suable  for  in  the  *Ecclesiastical  Court,  yet  a  special  [  *121  ] 
damage  attending  the  speaking  of  them,  by  which  means 
an  action  lies  at  Common  Law  for  the  words,  they  shall  not  proceed 
for  the  speaking  in  the  Ecclesiastical  Court.  But  the  court  refused 
to  grant  a  prohibition. 

But  it  seems  that  in  general,  the  Spiritual  Courts  have  not,  in 
■case  of  defamation,  any  concurrent  jurisdiction  with  the  courts  of 
Common  Laiu ;  so  that  if  the  same  words  impute  a  spiritual  and 
temporal  offence,  the  jurisdiction  of  the  former  court  ceases.  Hol- 
lingshead  prayed  a  prohibition  to  stay  a  suit  in  the  Spiritual  Court 
for  defamation.  The  words  were,  *'  Thou  art  a  bawd,  and  I  will 
prove  thee  a  bawd  ;"  and  because  these  words  were  properly  deter- 
minable in  the  Spiritual  Court,  and  no  action  lies  for  them  at  Com- 
moa  Law,  the  prohibition  was  denied.  But  Qp)  it  was  held,  that  for 
saving,  "  Thou  keepest  a  house  of  bawdry,"  this  being  matter  de- 
minable  at  the  Common  Law  by  indictment,  suit  shall  not  lie  in 
the  iSpiritual  Court. 

If  a  man  who  has  lands  by  descent  sue  in  the  Spiritual  Court  for 

(n)  Ld.  Ray.  1136.  (o)  Ld.  Ray.  UOl. 

<p)  Cro,  Car.  229.     Str.  1100.     Cro.  Car.  329 


121  PROHIBITION. 

words  of  bastardy,  a  prohibition  lies  ;  for  the  words  tend  to  the  tem- 
poral Qq)  disinheritance  of  the  plaintiff. 
[  *122  ]  *But  it  seems  that  the  mother  would,  in  such  case,  be 
entitled  to  sue  in  the  Spiritual  Court,  for  the  imputation 
upon  her  own  chastity  contained  in  such  a  charge  of  bastardy  ; 
since,  with  respect  to  herself,  the  slander  is  of  mere  spiritual  cog- 
nizance ;  and  even  where  the  mother  and  son  jointly  preferred  their 
libel  for  such  words,  a  prohibition  was  denied  (r). 

There  seems  to  be  a  stronger  reason  why  a  man  should  not  sue 
for  words  of  bastardy  than  the  one  assigned  in  Rolle,  namely,  that 
he  is  not  punishable  for  being  a  bastard. 

Where  the  same  words  imputed  incontinency,  and  an  infection 
with  the  venereal  disease  to  the  plaintiff,  who  sued  in  the  Spiritual 
Court,  a  prohibition  was  granted  (s)  :  although  the  first  words  were 
of  ecclesiasiical  cognizance. 

So  where  words  of  (t")  incontinency  were  imputed  at  the  same 
time  with  others  of  felony,  a  prohibition  was  moved  for  and  granted 
for  the  whole. 

If  part  of  the  words  he  aetionalle,  it  seems  that  a  prohibition  ivill 
be  granted  for  the  whole,  though  the  others  charge  a  spiritual  of- 
fence.     As  where  the  defendant  said,  "  You  are   a  whore  and 

thief  (m)." 
[  *123  ]  *Where  words  are  of  temporal  cognizance  from  the 
custom  cf  a  particular  place,  a  prohibition  will  be  grant- 
ed. As  where  words  of  incontinence  are  imputed  to  a  woman  in 
London,  no  suit  is  maintainable  in  the  Spiritual  Court  (x).  If  it 
appear,  however,  upon  suggestion  supported  by  affidavit,  or  upon 
the  face  of  the  libel  itself,  that  the  parties  did  not  live  within  the 
scope  of  the  local  jurisdiction,  no  prohibition  will  be  allowed. 

Thus,  in  the  case  of  W.  Johnson  v.  Bewick  (y)  the  words  were, 
"  Though  art  a  whore,"  and  the  custom  of  London  was  suggested  ; 

{q)  2  Roll.  Ab.  292.     Qu.  et  vid.  vol.  I.  Cap.  4.    . 

(r)  Ld.  Ray.  1287.     11  Mod.   117.  (s)  Ld.  Ray.  446. 

(0  Legate  v.  Wright,  H.  10  G.  2. 

(u)  2  Rol.  297.     1  Sid  404.     3  Mod.  74. 

(a)  Ld.' Ray.  711.     Sir.  188.  (y)  Ld.  Ray.  71L 


PROHIBITION.  123 

but  it  appeared  on  the  face  of  the  suggestion  that  neither  of  the 
parties  lived  within  the  jurisdiction  of  London.  It  was  urged,  that 
it  would  be  hard  to  deprive  the  defendant  of  the  power  of  punish- 
ing the  plaintiff,  for  having  spoken  those  malicious  and  defamatory 
words  in  a  court  where  she  may  proceed,  to  drive  her  to  another 
court  where  she  cannot  proceed,  the  plaintiff  living  out  of  the  juris- 
diction  of  the  court.  And  of  that  opinion  was  the  whole  court ; 
and  Holt,  C.  J.  said,  that  if  in  such  case  a  prohibition  were  grant- 
ed, ifc  would  give  license  to  all  the  market-women,  when  they  were 
in  London,  to  defame  their  neighbors,  without  fear  of  punishment. 

Where  a  prohibition  is  prayed,  grounded  upon  a  sup- 
posed *want  of  jurisdiction  in  the   Spiritual  Court,  the     [  *124  ] 
defect,  if  it  be  not  apparent  upon  the  face  of  the  pro- 
ceedings, must  be  verified  by  affidavit  (z). 

In  the  case  of  Argyle  v.  Hunt  (a),  a  prohibition  was  moved  for 
on  the  ground  of  a  defect  of  jurisdiction  appearing  on  the  face  of 
the  libel,  where  it  was  stated,  that  the  words,  which  were  of  incon. 
tinency,  had  been  spoken  in  London.  Bub  the  court  said  that  they 
could  not  judicially  take  notice  of  the  custom,  without  an  affidavit. 
But  in  the  case  of  Puiver  v.  Shaiv  (5),  a  rule  to  show  cause  was 
granted  why  prohibition  should  not  go  for  calling  a  woman  strumpet, 
in  Bristol,  though  there  was  no  affidavit  of  the  custom. 

It  seems,  generally,  that  any  (c)  words  from  which  the  intention 
to  impute  whoredom  can  be  collected,  will  be  a  good  ground  for  pro- 
hibition. 

The  Spiritual  Court  is  bound  to  allow  the.  defendant  the  ad  van. 
tage  of  any  justification  which  would  have  availed  him  at  Common 
Law  (d). 

The  plaintifi"  proceeded  in  the  Spiritual  Court  *for  the     [  *125  ] 
words,    "You  had  a  bastard  (e)*"      The    defendant 
pleaded  that  the  plaintiff  had  been  sentenced  for  this  cause  of  hav- 

{z)  M.  12.  G.  II.  Hind's  v.  Thompson.  Driver  v.  Driver,  Hill.  12.  G.  U. 
And.  304.  (a)  Str.  187. 

(6)  1  Wils.  62.  (c)  Sir.  471. 

{d)  Com.  dig.  tit.  Prohibition,  G.  14. 
(e)  Cro.  J.  625.     2  Rol.  Rep.  82. 


125  PEOHIBITION. 

ing  a  bastard,  and  ordered  to  keep  the  bastard,  at  the  sessiong,  at 
Norwich.  Notwithstanding  this,  the  court  proceeded,  and  the  de- 
fendant, in  the  Spiritual  Court,  moved  for  a  prohibition,  suggesting 
the  special  matter,  to  which  the  other  party  demurred.  It  was  ad- 
judged that  the  prohibition  should  stand  :  for,  being  sentenced  to  be 
the  reputed  father  by  the  Justices  of  the  Peace,  which  is  by  the 
authority  of  the  Statute  Law,  that  sentence  could  not  be  impeached 
in  the  Spiritual  Court,  or  elsewhere  ;  and  all  are  concluded  to  say 
the  contrary  until  it  be  reversed. 

By  the  1st  Edw.  III.  st.  2.  c.  11,  "  No  suit  shall  be  made  in  the 
Spiritual  Court  against  indictors.  The  Commons  do  grievously 
complain,  that  when  divers  persons,  as  well  clerks  as  lay  people, 
have  been  indicted  before  sheriffs  in  their  turns,  and  after  the  in- 
quest procured  be  delivered  before  the  Justices,  after  their  deliver- 
ance they  do  sue  in  the  Spiritual  Court  against  such  indictors,  sur- 
mising against  them  that  they  have  defamed  them,  to  the  great 
damage  of  the  indictors,  wherefore  many  people  of  the  shire  be  in 
fear  to  indict  such  offenders  ;  the  king  will,  that  in  such 
[  *126  ]  *case,  every  man  that  feeleth  himself  aggrieved  thereby, 
shall  have  a  prohibition  framed  in  the  Chancery  upon  hia 
case." 

Though  the  statute  in  terms  comprehends  indictments  before  sher- 
iffs in  their  turns  only  ;  it  seems  that  it  extends  to  indictments  in  all 
other  courts,  and  to  all  witnesses  and  others  who  have  affairs  in 
temporal  courts  (/). 

By  the  St.  27  G.  III.  c.  44,  no  suit  for  defamatory  words  shall 
be  brought  in  any  of  the  Ecclesiastical  Courts,  unless  the  same  shall 
be  commenced  within  six  calendar  months  from  the  time  when  such 
words  shall  have  been  uttered. 

The  distinction  as  to  the  time  of  moving  in  prohibition  is,  that 
where  the  defect  alleged  is  extrinsic  of  the  libel  itself,  the  party 
must  apply  before  sentence  in  the  Spiritual  Court ;  for  where  the 
Spiritual  Court  has  an  original  judisdictiSn  which  is  to  be  taken 
away  upon  account  of  some  matter  arising  in  the  suit  there,  after 
sentence  the  party  shall  never  have  a  prohibition,  because  he  him- 

(/)  12  Co.  43. 


PROHIBITION.  126 

Beir  hath  acquiesced  in  their  manner  of  trial,  which  is  a  waiver  of 
the  benefit  of  a  Common  Law  trial.  But  if  the  defect  of  jurisdictioa 
appear  upon  the  libel,  the  party  never  comes  too  late  (.<7). 

*ln  the  early  part  of  the  reign  of  Queen  Anne,  a  prohi-  [  "127  ] 
biiion  was  moved  for  to  stay  a  jiroceeding  in  the  court  of 
the  Earl  Marshal  against  the  defendant,  for  having  said  to  the  plain- 
tiff, who  was  a  knight,  '^  You  a  knight  (h)  !  you  are  a  piiifal  fellow, 
and  an  inconsiderable  fellow,"  to  the  great  scandal  of  gentlemen  and 
of  the  order  of  knighthood.  From  the  judgment  given  by  Lord 
Hole  upon  this  occasion,  it  appears  that  a  prohibition  had  been  sent 
to  a  Court  of  Honour  some  years  before,  (though  it  had  then  been 
contended  that  under  the  st.  13  Rich.  It.  c.  2,  the  proper  mode  of 
resisting  any  encroachment  by  such  courts,  was  by  a  writ  from  tho 
Privy  Council  to  restrain  them  ;)  since  in  all  cases  of  encroaohtnsnts 
by  courts  of  inferior  jurisdiction,  the  proper  remedy  is  by  writ  of 
prohibition. 

With  respect  to  the  court  itself  to  whish  the  prohibition  prayed 
for  was  to  be  sent,  it  appeared  that  it  had  been  held  before  the  Gon- 
Btable  and  Marshal  till  the  IS.hyear  of  H.  8.  when  the  Constable  (0 
was  attainted  of  treason,  and  the  ofi&se  extinguished  ;  but  that  tho 
pleas  relating  to  matters  of  law  had  since  been  held  before  the  Earl 
Marshal  only.  Bat  the  court  were  of  opinion,  that  what- 
ever colour  tbere  might  be  to  *hold  plea  of  sotne  things  [  *128  ] 
before  the  Marshal  alone,  there  was  no  pretence  to  hold 
plea  (k)  of  words. 

(o-)  Argylev.  Hunt,  Str.  187. 
{h)  Chambers  v.  Jennings,  7  Mod.  125. 
(i)  Stafford,  duke  of  Buckingham. 

(k)  Several  instances  of  great  oppression,  where  this  court  held  plea  of  words 
are  cited  iii  Hume  aad  Ld.  Clarendon. 


Vol.  II.  75 


CHAPTER  VI. 


Publications  against  Religion. 

[  "129  ]        "Having  thus  considered  the  nature  and  extent  of  the 
civil  remedy,  in  respect  of  malicious  and  injurious  com- 
munications, the  subject  is  next  to  be  regarded  in  reference  to  the 
interests  of  the  public. 

It  may  be  asserted  generally,  that  the  wilful  and  unauthorized 
publication  of  that  which  immediately  tends  to  produce  mischief  and 
inconvenience  to  society,  is  a  public  offence. 

The  present  branch  of  the  subject  may  be  considered, 

1st.  In  reference  to  the  essentials  which  constitute  the  offence. 

2ndly.  The  mode  of  prosecution  and  punishment. 

First,  in  reference  to  the  essentials  which  constitute  the  offence  : 

These  regard — 

1st.  The  nature,  quality,  and  tendency  of  the  matter  f  ublished. 

2Ddly.  The  act  of  the  party  concerned  in  the  publication. 

Srdly.  His  motive  and  intention. 

4thly.  Collateral  circumstances. 
[  *130  ]         *First,  as  to  the  nature,  quality,  and  tendency  of  the 
matter  published. 

The  offence  may  consist  in  the  tendency  of  the  communication  to 
weaken  or  dissolve  religious  or  moral  restraints,  or  to  alienate  mens' 
minds  from  the  established  constitution  of  the  state,  or  to  engender 
hatred  and  contempt  of  the  king  or  his  government,  or  the  houses  of 
Parliament,  or  the  administration  of  public  justice,  or  in  general  to 


BLASPHEMY.  130 

produce  some  particular  inconvenience  or  mischief,  or  to  excite  in- 
dividuals to  the  commission  of  breaches  of  the  public  peace,  or  other 
illegal  acts. 

Blasphemies  against  God  and  religion  may  be  regarded  spiritual- 
Ij,  as  acts  of  imbecile  and  impious  hostihty  against  the  Almighty,  or 
temporally,  as  they  aftect  the  peace  and  good  order  of  civil  society. 
It  is  in  the  latter  relation  only  that  such  offences  are  properly  cogni- 
zable by  municipal  laws.  To  attempt  to  redress  or  avenge  insults  to 
a  supreme  and  omnipotent  Creator,  would  be  absurd  ;  but  when  it  is 
considered  that  such  impieties  not  only  tend  to  weaken  and  under- 
mine the  very  foundation  on  which  all  human  laws  must  rest,  and  to 
dissolve  those  moral  and  religious  obligations,  without  the  aid  of  which 
mere  positive  laws  and  penal  restraints  would  be  infficacious,  but 
also  immediately  tend  to  acts  of  outrage  and  violence  (a) 
•being  for  the  most  part,  gross  insults  to  those  who  be-  [  *131  ] 
lieve  in  the  doctrines  which  are  held  up  to  scorn  and 

(a)  The  following^  are  the  remarks  of  the  learned  Michaelis,  on  the  question 
whether  blasphemy  ought  to  be  punished  in  the  temporal  courts — Michaelis  on 
the  Mosaic  Law,  vol.  4  p.  491  ;  Smith's  Translation. 

With  regard,  then,  to  blasphemy,  is  it  irrational,  barbarous,  and  superstitious, 
that  any  punishment  should  be  inflicted  on  the  crimes  which  are  usually  com- 
prehended under  this  name?  Almost  all  nations  have  accounted  it  jast,  and 
some  have  punished  such  crimes  with  extreme  severity.  At  present,  however, 
the  objection  that  blasphemy  injures  not  God,  he  being  infinitely  eialied  above 
it,  is  trumpeted  abroad  with  loud  approbation.  It  does  not,  indeed,  appear  very 
striking  to  me  ;  and  those  who  make  it  would  seem  to  have  conceived  that  the 
intention  of  punishing  blasphemy  were  to  procure  safety  to  God  :  that,  however, 
could  scarcely  have  been  the  unanimous  idea  of  so  many  nations,  and  these,  too, 
differing  so  widely  in  civilization,  climate  and  religion  ;  for  most  of  them  would 
probably  have  conceived,  that  if  God  wished  to  avenge  this  crime,  he  would 
take  vengeance  at  his  pleasure,  and  would  not  want  the  aid  of  human  laws  for 
this  purpose. 

On  God's  account,  then,  punishments  for  blasphemies  are  not  necessary;  but 
perhaps  they  are  necessary  for  the  sake  of  our  neighbour,  who,  if  he  believes 
in  a  God,  or  holds  his  religion,  whether  true  or  false,  to  be  true,  always  feels 
himself  extremely  scandalized  by  them.  Nor  is  it  only  blasphemy  against  the 
true  God  that  ought  to  be  punished,  but  even  that  against  false  gods,  supposed 
saints  and  fictitious  religion,  whenever  they  happen  to  be  the  gods,  saints,  and 
religion  of  the  people. 


132  CRIMINAL  DIVISION. 

•contempt,  they  necessarily  become  an  important  subject 
[  *132  ]     of  municipal  coercion  and  restraint  (b). 

Putting  blasphemy  entirely  out  of  the  question,  has  any  nnan  a  right  to  call 
me  to  my  face,  on  account  of  my  opinions,  whether  true  or  false,  or,  which  is 
the  same  thing,  on  account  of  the  philosophy  which  I  adopt,  a  fool,  a  profligate, 
a  villain  !  He  may  be  of  a  different  opinion,  and  may,  if  I  choose  to  hear 
him,  give  his  reasons  with  great  animation,  in  which  case,  should  a  harsh  word 
escape  him  in  the  keenness  of  argument,  I  am  bound  to  overlook  it,  because  I 
might  myself  be  guilty  of  the  same  fault ;  but  if,  without  having  this  apology, 
he  should  tell  me  to  rny  face.  The  philosophy  which  you  adoptis  nonsense ;  it 
is  abominable ;  it  is  imposture;  and  its  author  is  a  villain  and  a  rogue — I  certain- 
ly should  not  be  censurable  for  repaying  such  insolence  with  manual  chastise- 
ment, if  the  magistrate  would  listen  to  no  complaint  on  account  of  it.  And  if 
the  man  had  treated  me  with  such  gross  rudeness  in  the  presence  of  others — of 
my  children,  perhaps,  or  my  servants,  before  whom  1  should  thereby  have  ap- 
peared in  a  contemptible  light,  his  offence  would  be  so  much  the  greater;  I 
ought  to  have  it  in  my  power  to  complain  of  it ;  and  though,  instead  of  doing 
so,  I  were  to  give  him  a  drubbing,  I  certainly  should  have  the  excuse  of  what 
is  called  a.  Justus  dolor  to  plead.  Again,  the  offence  wiuild  be  further  aggrava- 
ted, and  my  right  to  revenge  it  the  better  if  he  had  addressed  me  in  such  inso- 
lent language  in  a  place  where  he  had  no  title  to  be  without  my  permission — for 
example,  in  my  own  house. 

Now  to  the  man  who  from  his  heart  believes  his  religion,  and  regards  it  as 
the  way  to  eternal  bliss,  and  as  the  comfort  both  of  life  and  death,  and  vvho,  of 
course,  wishes  to  educate  his  family  in  the  knowledge  and  belief  of  it,  nothing 
can  be  more  oflc^nsive  than  to  hear  another  speaking  against  it,  and  employing, 
not  arguments  (although  even  these  he  might  let  alone,  because  eveiy  man  has  a 
right  even  to  err,  wiihout  our  forcihly  inierfeiing  to  rid  him  of  his  errors,)  but 
insolent  and  contemptuous  hanguage,  and  blas|iheming  its  gods,  its  prophets, 
saints,  ;in  J  sacred  things.  Where  the  religion  in  question  is  only  tolerated  sl\\\  \he 
stale  is  bound  to  protect  every  person  who  believes  it,  from  such  outrages,  or  it 
cannot  blame  him  if  he  has  not  the  patience  to  bear  them.  But  if  it  be  the  es- 
tablished national  religion,  and  of  course  the  person  not  believing  it  be  only  to- 
lerated by  the  slate,  and  though  he  enjoys  its  protection  just  as  if  he  were  in  a 
strange  house,  such  an  outrage  is  excessively  gross  ;  and  unless  we  conceive 
t'le  people  so  tame  as  to  put  up  with  any  affront,  and  of  course  likely  to  play 
but  a  very  despicable  p;ul  on  the  stane  of  the  world,  the  state  has  only  lo  choose 
between  the  two  alternatives,  of  either  punishing  the  plasphemer  itself  or  else 
leaving  him  to  the  fury  of  the  people.  The  former  is  ihe  milder  plan,  and  there- 
fore to  be  preferred,  because  the  people  are  ajjt  lo  gratify  their  vengeance  without 
sufficient  inquiry,  and  of  course  it  may  light  upon  the  innocent. 

Nor  is  this  by  any  means  a  right  which  I  only  claim  for  the  religion  which  I 


BLASPHEMY.  133 

•The  importance  of  such  restraints  is  strongly  illustra-     [  *133  ] 
ted  in  the  instance  of  judicial  oaihs.     The  foundation  of 

hold  to  be  the  true  one  ;  1  am  also  bound  to  admit  it  when  T  happen  to  be  among 
a  people  from  whose  religion  I  dissent ;  were  I  in  a  Catholic  country  to  deiide 
their  saints  or  insult  their  religion  by  my  behaviour,  were  it  only  by  rudely  and 
designedly  putting  on  my  hat,  where  decency  would  have  suggested  the  taking 
it  off;  or  were  I  in  Turkey  to  blaspheme  Mahomet,  or  in  a  Heathen  city  its 
Gods; — nothing  would  be  more  natural  ihan  for  the  people,  instead  of  suflyring 
it,  to  avenge  the  insult  in  their  usual  way,  that  is  tumultucusly,  passionately, 
and  immoderately  ;  or  else  the  slate  would,  in  order  to  secure  me  from  the  effects 
of  their  fury,  be  under  the  necessity  of  taking  my  punishment  upon  itself,  and 
if  it  does  so,  it  does  a  favour  both  to  me  and  other  dissenters  from  the  establish- 
ed religion,  because  it  secures  us  from  still  greater  evils.  Of  the  mischief  that 
the  blasphemer,  and  still  more  the  scoffer  at  religion,  does  in  society,  if  he  suc- 
ceed in  making  religion  really  contemptible,  I  do  not  think  it  necessary  here  to 
say  a  word. 

To  the  complete  disowner  of  religion,  whether  he  disbelieve  in  a  God  alto- 
gether, or  but  only  as  concerning  himself  in  human  affairs,  as  punishing  sin  and 
ruling  the  woild,  and  consequently  to  the  blasphemer  of  the  only  true  God,  the 
state  according  to  the  spirit  of  laws,  owes  no  toleration  whatever,  because  no 
dependence  can  be  placed  on  sucli  a  person,  his  oath  being  a  mere  nonentity  ; 
nor  is  he  to  be  trusted  farther  than  he  is  under  inspection.  Should  he  be  a  ma- 
licious rascal,  punishments  would  be  insufficient  to  secure  us  against  his  attacks, 
because  the  man  who  has  no  dread  of  another  world,  can  hope  to  escape  punish- 
ment by  suicide.  He  is  therefore  a  very  dangerous  member  of  society.  If  again 
the  state  does  not  proceed  upon  this  principle,  if  it  tolerates  the  Atheist  and  the 
Infidel,  nay,  and  protects  him  too,  allhuugh  no  dependence  can  be  placed  on 
his  doing  anything  in  return  for  the  defence  of  the  country,  because  he  can  give 
himself  a  dispensation  from  all  oaths,  and  putting  arms  into  his  hands  might  be 
hazardous  ;  still  such  a  man  must  suspect  that  he  is,  as  I  before  expressed  it,  in 
a  strange  house  wherein  he  cannot  possibly  claim  equal  rights  wi:h  others. 
His  oath  cannot  so  much  as  be  valid  for  a  proof  in  any  judicial  ft.tcess.  He 
ought,  therefore,  to  behave  as  a  man  in  a  strange  house  will  naturally  do,  with- 
out insulting  by  his  blasphemies  the  people  who  lodge  and  protect  him,  and  yet 
gei  nothing  from^him  in  return,  or  else  he  cannot  think  it  unjust  that  he  should 
be  punished  if  he  does. 

In  fact,  the  doctrine  that  blasphemy  ovght  not  to  he  punished,  appears  to  me  to 
border  upon  the  persecution  of  religi^  n  ;  for  thus,  the  infidel  would  have  a  right 
to  blaspheme  and  we  should  be  obliged  to  b^ar  it.  Nay,  even  scoffing  and  re- 
viling religion  is,  likewise,  a  persecution  of  it,  and  one  that  is  felt  very  sensibly 
by  its  friends;  for  if  I  am  obliged  to  let  another  person  insult  me  to  my  face,  I 
must  consider  it  as  inflicting  a  deep  wound  upon  my  honour. 


134  CRIMINAL  DIVISION. 

[  •134  J     these  is  as  a  belief  in  a  superintending  *Deity,  who  watch- 
es over  the  affairs  of  men,  and  who  will,  in  a  future  state 
administer  rewards  and  punishments  with   reference  to 
[  *135  ]     their  conduct  here.     To  remove  therefore  so  solemn  and 
weighty  an  obligation,  would  be  to  overthrow,  or  at  least 
to  weaken,  that  confidence  in  human  veracity  which  is  necessary  for 
the  purposes  of  society,  without  which  no  question  of  property  could 

be  decided,  and  no  criminal  brought  to  justice  (c). 
[  *136  ]  *Upon  the  dangerous  temporal  consequences  likely  to 
proceed  from  the  removal  of  religious  and  moral  re- 
straints, the  punishment  for  blasphemous,  profane,  and  immoral  (d) 
publications  is  founded,  without  any  view  to  the  spiritual  correction 
or  amendment  (e)  of  the  offender. 

Blasphemy  against  the  Almighty  by  denying  his  being  or  provi- 
dence, contumelious  reflections  upon  the  life  and  character  of  Jesus 
Christ  (t?),  and  in  general  scofl&ug,  flippant,  and  indecorous  remarks 
and  comments  upon  the  scriptures,  are  offences  at  Common  Law, 
for  Christianity  (e),  as  has  frequently  been  asserted  by  high  author- 
ities, is  part  of  that  law.  There  are  also  some  offences  against 
Christianity  in  particular,  which  will  be  afterwards  noticed,  as  having 
been  defined  by  certain  statutes.  The  first  instance  of  prosecution 
for   words   reflecting   on  religion   occurred  in   the    15th   year   of 

James  I. 
[  *137  ]         Atwood  (/)  was  convicted  upon  an  indictment  *before 
Justices  of  the  Peace  for  saying  "  the  religion  now  pro- 

(b)  Offences  of  this  nature,  because  they  tend  to  subvert  all  religion  and 
morality,  which  are  the  foundation  of  government,  are  punishable  by  the  tem- 
poral judges  with  fine  and  imprisonment.     Haw.  P.  C.  B.  1,  c.  5. 

(c)  Utiles  esse  opiniones  hasqais  negat  cum  intelligat  quam  multa  firmentur 
jurejurando  ;  quantae  salulis  sint  fcederum  religiones  ;  quam  multos  divini  sup- 
plicii  metus  a  scelere  revocarit ;  quamque  sancta  sit  societas  civium  inter  ipsos 
Diis  immortalibus  interpositis  tarn  judicibns  tarn  testibus.     Cic.  de  LL. 

{d)  11  Mod.  142.  (e)  4  Bl.  Comm.  59.  Fitz.  65.  2  Roll.  Ab.  78. 

id)  Haw.  P    C.  Book  1,  c  5.  1  Vent.  295.  3  Keb.  607.  4  Comm.  59. 

(e)  4  Bl  Com.  59.  1  Haw.  PI.  Cr-  c  5.  1  Yin.  293-  2  Str.  834.  1  Vent  293. 
11  Mod.  142.  1  Str.  416,  788.  Fitz.  65.  2  Roll.  Ab.  187.  Cro.  J.  24,  421.  Infra 
138,  113. 

(/)  Cr.  J.  421. 


BLASPHEMY.  137 

fessed  was  a  new  religion  within  fifty  years  ;  preaching  is  but  prat 
ing,  an^  hearing  of  service  more  edifying  than  two  hours'  preach 
ing."  It  was  assigned,  for  error,  that  this  was  an  offence  not  in 
quirable  upon  indictment  before  Justices  of  the  Peace,  but  only  be 
fore  the  High  Commissioners  ;  and  it  was  referred  to  the  Attorney 
Ge-neral  (^)  to  consider  thereof,  and  he  certified  that  it  was  not 
inquirable   before  them,  and  of  that  opinion  were  the  whole  court. 

In  the  King  v.  Taylor  (Ji),  the  defendant  was  convicted  upon  an 
information  for  saying  that  "  Jesus  Christ  was  a  bastard,  a  whore- 
master  ;  religion  was  a  cheat ;  and  that  he  neither  feared  God,  the 
Devil,  nor  man."  Hale,  Chief  Baron,  observed,  that  such  kind  of 
wicked  and  blasphemous  words  were  not  only  an  offence  against  God 
and  religion,  but  a  crime  against  the  laws,  state,  and  government, 
and  therefore  punishable  in  this  (i)  court ;  that  to  say  religion  is  a 
cheat,  is  to  dissolve  all  those  obligations  whereby  civil  societies  are 
preserved  ;  and  that  Christianity  is  parcel  of  the  laws  of  England ; 
and,  therefore,  to  reproach  the  Christian  religion  is  to  speak  in  sub- 
version of  the  law  [1]. 

*In  the  cases  of  Clendon  (Jc)  and  Eall  (Oi  the  defend-     [  *138  ] 
ants  were  convicted  of  having  published  libellous  reflec- 
tions upon  the  Trinity,  and  it  does  not  seem  to  have  been  doubted 
in  those  cases  whether  the  offence  was  of  a  temporal  nature. 

In  the  case  of  the  King  v.  Woolston  (jn)^  the  defendant  had  been 
convicted  of  publishing  five  libels,  wherein  the  miracles  of  Jesus 
Christ  were  turned  into  ridicule,  and  his  life  and  conversation  ex- 
posed and  vilified.  It  was  moved  in  arrest  of  judgment,  that  the 
offence  was  not  punishable  in  the  Temporal  Courts.  But  the  court 
declared  they  would  not  suffer  it  to  be  debated,  whether  to  write 
against  Christianity  in  general  was  not  an  offence  of  temporal  cog- 
nizance. The  counsel  for  the  defendant  further  contended,  that  the 
intent  of  the  book  was  merely  to  shew  that  the  miracles  of  Jesus 

{g)  Sir  Henry  Yelverton. 

\h)  Vent.  293.  3  Keb.  Rep.  607.         {i)  i.  e.  of  K.  B. 

(/)  1  Str  416.  (m)  Str.  834.     Fitzgibb.  64,  Barnard. 

{k)  E.  T.  10  Ann,  cited  Str.  789. 

[1]  Blasphemy  held  to  be  punishable  at  Common  Law,  in  The  People  w. 
Ruggles,  8  Johns.  R.  290. 


138  CRIMINAL  DIVISION. 

vrere  not  to  be  taken  in  a  literal  but  in  an  allegorical  sense,  and  there- 
fore that  the  book  could  not  be  considered  as  aimed  at  Christianity 
in  general,  but  merely  as  attacking  one  proof  of  the  divine  mission. 
But  the  court  said  they  were  of  opinion,  that  the  attack- 
[  *139  ]  ing  Christianity  in  this  way  was  destroying  the  *very 
foundation  of  it ;  and  that  though  there  were  professions 
in  the  book  that  the  design  of  it  was  to  establish  Christianity  upon 
a  true  bottom,  by  considering  these  narratives  in  scripture  as  em- 
blematical and  prophetical,  yet  that  these  professions  could  not  be 
credited,  and  that  the  rule  is,  allegaiio  contra  factum  non  est  ad- 
milt  cnda. 

But  the  court,  in  declaring  that  they  would  not  suffer  it  to  be  de- 
bated, whether  writing  against  Christianity  in  general  was  a  tem- 
poral offence,  desired  that  it  might  be  noticed  that  they  laid  their 
stress  upon  the  term  general,  and  did  not  intend  to  include  disputes 
between  learned  men  upon  particular  controverted  points  ;  and  Lord 
Raymond,  C.  J.  in  delivering  the  opinion  of  the  court  said,  "I 
would  have  it  taken  notice  of,  that  we  do  not  meddle  with  any 
differences  in  opinion,  and  that  we  interfere  only  (n)  where  the  very 
root  of  Christianity  is  struck  at ;  and  with  him  agreed  the  whole 
court. 

An  information  (o)  was  filed  by  the  Attorney-General  (jo)  against 
Jacob  Hive  for  publishing  a   profane  and  blasphemous  libel,  tending 
to  vilify  and  subvert  the  Christian  religion,  and  to  blas- 
[  *1-10  ]     pheme  *our  Saviour  Jesus  Christ,  and  to  cause  his  divin- 
ity to  be  denied,  and  to  represent  him  as  an  impostor, 
and  to  scandalize,  ridicule,  and  bring  into  contempt,  his  most  holy 
life  and  doctrine  :  and  also  to  cause  the  truth  of  the  Chiistian  reliij- 
ion  to  be  disbelieved  and  totally  rejected,  by  representing  the  same 
as  spurious  and  chimerical,  and  a  piece  of  forgery  and  priestcrafc. 
An  information  (^q)  was  exhibited  against  one  Peter  Annett,  by 
the  Attorney-General,  for  a  certain  malignant,   profane,  and   blas- 
phemous libel,  intituled  "The  Free  Inquirer,"  tending  to  blaspheme 

(n)  Fitzjjibbon  66.  (o)  Hill.  Term,  29.  G.  II.  1756.  Dig.  L.  L.  83. 

(jj)  Charles  Pratt,  Esq.  afterwards  Chief  Justice  of  the  Common  Pleas, 
(g)  Mich.  3  Geo.  III.  1763.     2  Burn's  Ecclesiastical  Law,  781. 


BLASniEMY.  1^0 

Almighty  God,  and  to  ridicule,  traduce,  and  discredit  his  Holy 
Scriptures,  particularly  the  Pentateuch,  and  to  represent,  and  to 
cause  it  to  be  believed,  that  the  proi)het  Moses  was  an  iinposter, 
and  that  the  sacred  truths  and  miracles  recorded  and  set  forth  ia 
Ihe  Pentateuch  uere  impositions  and  false  inventions,  and  thereby 
to  -  diffase  and  propagate  irreligious  and  diabolical  opinions  in  the 
minds  of  his  Majesty's  subjects,  and  to  shake  the  foundations  of 
the  Christian  religion,  and  of  the  civil  and  ecclesiastical  govera- 
ment  established  in  this  kingdom. 

Bein*--  convicted  upon  this  information,  the  sentence 
of  the  Court  of  King's  Bench  was,  that  *he  should  suf-     [  *141  ] 
fer  one  month's  imprisonment  in  Newgate,  stand  twice 
in  the  pillory,  once  at  Charing  Cross,  and  once  at  the  Royal  Ex- 
change, and  then  be  confined  in  Bridewell  to  hard  labour  for  one 
year^and  to  find  security  for  his  good  behaviour  for  the  remainder 

of  his  life. 

An  information  (r)  was  exhibited  by  the  Attorney-General  (s) 
ogainst  John  Wilkes,  for  publishing  an  obscene  and  impious  libel, 
tending  to  vitiate  and  corrupt  the  minds  and  manners  of  his  Maj- 
esty's suhjects  ;  to  introduce  a  total  contempt  of  reliJon,  modesty, 
and  virtue;  to  bJaspheme  Almighty  God;  and  to  ridicule  our 
Sa^  i  )ur  and  the  Christian  religion. 

In  the  Jung  V.  Williams  (0  the  defendant  was  convicted  of 
bavin-  published  a  libel,  entitled  "  Paine's  Age  of  Reason,"  which 
denied  the  authority  of  the  Old  and  New  Testament,  asserted  that 
reason  was  the  only  rule  by  which  the  conduct  of  men  ought  to  bo 
guided,  and  ridiculed  the  prophets,  Jesus  Christ,  his  disciples,  and 
the  sc.iptures.  Upon  being  brought  up  to  receive  sen^.enoe,  Mr. 
Jastice  Ashurst  observed,  that  such  doctrines  were  an  offence,  not 
only  against  God,  but  against  law  and  government,  from 
their  'direct  tendency  to  dissolve  all  the  bonds  and  obli-  [  *i-42  ] 
gations  of  civil   society  ;    and  that  upon  this  ground  ib 

(r)  Hi!.  4.  G.  m.  (5">  Sir  Flecher  Norton. 

it)  Before  Lord  Kenyon,  C  J.  at  the  Guildhall,  1797. 

Vol.  II.  '^^ 


142  CRIMINAL  DIVISION. 

was,  that  the  Christian  religion  constituted  part  of  the  law  of  the 
laud  (m). 

Daniel  Isaac  Eaton  was  convicted  upon  an  information 
[  *143  ]  'filed  by  the  Attorney-General  (a;),  of  having  published 
an  impious  libel,  representing  Jesus  Christ  as  an  imposter 
— the  Christian  religion  as  a  mere  fable — and  those  who  believed  in 
it  as  infidels  to  God.  Upon  being  brought  (?/)  up  to  receive  the 
judgment  of  the  court,  though  his  counsel  addressed  the  court  for 
the  purpose  of  mitigating  the  punishment,  no  exception  was  taken  to 
the  legality  or  propriety  of  the  conviction. 

It  appears,  therefore,  to  have  been  long  ago  settled,  that  blas- 
phemy against  the  Deity  in  general,  or  an  attack  against  the  Chris- 
tian religion  individuallj',  for  the  purpose  of  exposing  its  doctrines  to 
contempt  and  ridicule,  is  indictable  and  punishable  as  a  temporal 
offence  at  Common  Law.  The  same  doctrine  has  been  fully  recog- 
ized  in  several  recenc  ca^es  (s). 

(m)  He  observed,  that  "  although  the  Almighty  did  not  require  the  aid  of 
human  tribunals  to  vindicate  his  precepts,  it  was,  nevertheless,  fit  to  show  our 
abhorrence  of  such  wicked  doctrines,  which  were  not  only  an  offence  against 
God,  but  against  all  law  and  government,  from  their  direct  tendency  to  dissolve 
all  tlie  bonds  and  obligations  of  civil  society.  It  was  upon  this  ground  that  the 
Christian  religion  constituted  part  of  the  law  of  the  land.  But  if  the  name  of 
our  Redeemer  was  suffered  to  be  traduced,  and  his  holy  religion  treated  with 
contempt,  the  solemnity  of  an  oath,  on  which  the  due  administration  of  justice 
depended,  would  be  destroyed,  and  the  law  be  stripped  of  one  of  its  principal 
sanctions — tlie  dread  of  future  punishment.  This  crime  was  farther  aggravat- 
ed by  the  motive  in  which  it  was  conceived  :  there  could  be  no  temptation,  no 
sudden  iiripulse  of  passion,  to  which  man  was  so  often  exposed  by  the  frailty 
of  his  nature  ;  it  could  have  proceeded  only  from  a  cool  and  malignant  spirit." 
Mr.  Justice  Ashuist  then  pronounced  the  judgment  of  the  court,  which  was, 
"  that  the  defendant  be  imprisoned  in  the  house  of  correction  for  one  year, 
there  to  be  kept  to  hard  labour,  and  that,  at  the  expiration  thereof,  he  shall  give 
security  to  the  amount  of  £1000  for  his  good  behaviour  for  the  rest  of  his  life." 

Lord  Kenyon  said,  that  the  sentence  was  light,  very  Jight  indeed,  consid- 
ering the  nature  of  his  offence,  which  was  horrible  to  Christian  ears  :  he  had 
known  a  case  of  less  enormity,  where  the  defendant  was  sentenced  to  three 
years'   imprisonment. 

(X)  Sir  Vicary  Gibbs,  Knt.  {y)  Easter  Term,  52  G.  III. 

(2r)  Rex  V.  Carlile,  3  B.  &  A.  161,  where  t?he  defendant  having  been  con- 
victed of  publishing  two  blasphemous  libels,  was,  in  Mich.  T-  60  G.  III.,  sen- 


BLASPHEMY.  1-44 

With  respect  to  the  extent  of  this  offence,  and  the 
nature  and  certainty  of  the   words,  it  appears,  'in    the     [  *14:4  ] 
first  place,  to  be  immaterial,  whether  the  publication  be 
oral  («)  or  written ;  though  the  committing  mischievous  matter  to 
print  or  writing,  and  thereby  affording  it  a  wider  circulation,  would 
undoubtedly  be  considered  as  an  aggravation,  and  affect  the  measure 

of  punishment. 

Again,  it  does  not,  in  principle,  seem  to  be  material,  whether  the 
direc't  attack  is  made  upon  religion  in  general,  or  upon  some  par- 
ticular  proof  or  evidence  in  support  of  it :  thus,  in  Woolston's  case, 
the  publication  was  considered  to  be  illegal,  though  the  immediate 
and  professed  object  of  the  writer  was  to  overthrow  the  evidence  of 
the  divine  mission  supplied  by  the  miracles,  and  to  degrade  them 
into  mere  emblems  and  allegory.     The  court  were  there  of  opinion, 
that  a  general  and  deliberate  intention  to  subvert  Christianity  might 
be  evidenced  by  an  attempt  to  weaken  one  of  the  several  proofs  upon 
which  its  credibility  rests  ;  and,  indeed,  it  would  be  inconsistent  to 
inflict  penalties  for  any  general  attack  upon  the  system  of  Christi- 
anity, and  yet  to  allow  its  foundations  to  be  gradually  sapped  and 
undermined  with  impunity. 

It  may  be  asked,  is  every  publication  which  *tends  to  [  *145  ] 
weaken  any  particular  argument  which  has  been  adduced 
to  prove  the  existence  of  a  superintending  Deity,  or  the  truth  of 
Christianity,  illegal  and  indictable  ?  There  can  be  no  doubt  as  to 
the  general  right  of  inquiry  and  discussion,  even  upon  the  most  sa- 
cred subjects,  provided  the  license  be  exercised  in  the  spirit  of  tem- 
perance, moderation,  and  fairness,  without  any  intention  to  injure  or 
affront (6*).   .In  the  cases  cited,  the  defendants  were  charged  with 

tenced  to  pay  a  fine  of  £1500,  to  be  imprisoned  for  three  years,  and  to  find 
sureties  for  his  good  behaviour  for  the  term  of  his  life.  Also  in  the  case  of  R. 
V.  Waddington,  1  B.  &  C.  26  and  R.  v.  Taylor,  who  in  Hil  T.  1828,  was  sen- 
tenced to  p°ay  a  fine,  and  to  suffer  one  year's  imprisonment,  for  a  blasphemous 

discourse.  t^  .    t> 

(a)  The  King  v.  Atwood,  Cro.  J.  421.     The  King  v.  Taylor,  3  Keb.  Rep. 

607.     Vent.  293.     The  King  v.  Taylor,  Hil.  T.   1828. 

{b)  See  the  trial  of  the  publisher  of  Paine's  Age  of  Reason.     The  learned 

counsel  for  the   prosecution  (Mr.  Erskine)  observed,  "  Every  man  has  a  right 


145  CRIMINAL  DIVISION. 

having  exposed  Christianity  and  its  doctrines  to  contempt  and  ridi- 
cule, for  the  purpose  of  introducing  a  rjeneral  disregard  of  religion. 
Ai)d  in  WooJdtons  case  the  court  desired  it  rai,:ihc  be  particularly 
noticed,  that  they  laid  stress  upon  the  term  general,  and  did  not  in- 
tend to  include   disputes  between  learned  men  upon  controverted 

points. 
[  *146  ]  There  are  no  questions  of  more  intense  and  *awful  in- 
terest, than  those  which  concern  the  relations  between 
the  Creator  and  ihe  beings  of  his  creation  ;  and  though,  as  a  matter 
of  discretion  and  prudence,  it  might  be  better  to  leave  the  discussion 
of  such  matters  to  those  who  from  their  education  and  habis,  are 
most  likely  to  form  correct  conclusions,  yet  it  cannot  be  doubted 
that  any  man  has  a  right,  not  merely  to  judge  for  himself  on  such 
subjects,  but  also  legally  speaking,  to  publitsh  his  opinions  fur  the 
benefit  of  o'.hers. 

"When  learned  and  acute  men  enter  upon  these  discussions  with  such 
laudable  motives,  their  very  controversies,  even  where  one  of  tho 
antagonists  must  necessarily  be  mistaken,  sj  far  from  producing  mis- 
chief, must  in  general  tend  to  the  advancement  of  truth,  and  the  es- 
tablishment of  religion  on  the  firmest  and  most  stable  foundations. 
The  very  absurdity  and  folly  of  an  ignorant  mm,  who  professes  to 
teach  and  enligliten  the  rest  of  mankind,  are  usually  so  gross  as  to  ren* 
der  his  errors  harmless  ;  but  be  this  as  it  may,  the  law  interferes  not 
with  his  blunders  so  long  as  they  are  honest  ones,  justly  consii^.ering, 
that  society  are  more  than  compensated  for  the  partial  and  limited 
m'schiefs  which  may  arise  from  the  mistaken  endeavors  of  honest 
ignorance,  by  the  splendid  advantages  which  result  to  religion  and  to 
truth  frcm  the  exertions  of  free  and  unfettered  minds. 
[  *147  ]  It  is  the  mischievous  *abu3e  of  this  state  of  intellectual 
liberty  which  calls  for  penal  censure.     The  law  visits  not 

to  investigate,  with  reason,  controversial  points  of  th3  Ciiristian  religion  ;  but  no 
man,  consistently  wiih  a  law  which  only  exists  under  its  sanctions,  has  a  right 
to  deny  its  very  existence,  and  to  pour  forth  such  shocking  and  insuhing  invec- 
tives as  the  lowest  estabhshments  in  the  gradations  of  civil  authority  ought  not 
to  be  subjected  to,  and  which  would  soon  be  borne  down  by  violence  and  dis- 
obedience if  they  were." 


BLASPHEMY.  147 

the  hone?t  errors,  but  the  marcs  of  mankinrl.  A  wilful  intention 
to  pervert,  insult,  and  mislead  others,  by  means  of  licentious  and 
contumd.ous  abuse  npplied  to  sacred  subj^'cts,  or  by  wilful  misrep- 
resentations or  artful  sophistry,  cakulateil  to  mislead  ihe  ignorant 
and  unwary,  is  the  criterion  and  test  of  guilt. 

A  malicious  and  mischievous  intention,  or  what  is  equivalent  to 
such  an  inten'ion,  in  law,  as  well  as  morals — a  state  of  apathy  and 
indifference  to  the  interests  of  society  is  the  broad  boundary  between 
ri'dit  and  wron".      If  it  can  be  collected  from  the  circumstances  of 

O  O 

the  publication,  from  a  display  of  offensive  levity,  from  contumelious 
and  abusive  expressions  applied  to  sacred  persons  or  subjec;s,  that 
the  design  of  the  author  was  to  occasion  that  mischief  to  which  tho 
matter  which  he  publishes  immedia'ely  temls,  to  destroy  or  even  to 
weaken  men's  sense  of  religious  or  moral  obligation-!,  to  insult  those 
who  believe  by  casting  contum^elious  abuse  and  ridicule  upon  their 
doctrines,  or  to  biing  the  established  religion  and  form  of  worship 
into  disgrace  and  contempt  (e),  the  offence  against  society  is  com- 
plete. 

*The   legislature  has,  nevcrdieless,  deemed  it  proper   to   fortify 
the  Common  Lawrestraint  by  several  penal   enactments, 
api  lical'le  to  particular  persons  and  cases.     By  statutes     [  *148  ] 
1  Ed.  VI.  c.  1,  and  1  Ellz.  c.  1,  s.  14,  whoever  reviles 
the  sacrament  of  the  Lord's  supper  shall  be  punished  by  fine  and 
impiisonment. 

By  Stat.  1  Eiiz.  c.  2,  if  any  minister  shall  speak  any  thing  in 
derogation  of  the  book  of  Common  Prayer,  he  shall,  if  not  beneficed, 
be  impr'.soned  one  year  for  the  first  offence,  and  for  life  for  the  se- 
cond :  and  if  he  be  bentficcd,  he  shall  for  the  first  offence  be  im- 
prisoned six  months,  and  forfeit  a  year's  value  of  his  benefice  ;  for 
the  second,  he  shall  be  deprived  and  suffer  one  year's  imprisonment ; 
and  for  the  third,  shall  in  like  manner  be  deprived,  and  suffer  im- 
prisonment for  life.     And  if  any  person  whatsoever  shall,  in  plays, 

(c)  Sir  William  Blackstone,  in  his  Comment  upon  the  Statutes  cite  1  below, 
observes,  "It  is  clear  iliat  no  restraint  should  be  laid  upon  raiional  and  dispas- 
sionate discussions  of  the  rectitude  and  propriety  of  the  established  mole  of 
worship,  yet  contumely  and  contempt  are  what  no  establishment  can  tolerate." 
4  Bl.  Com.  51. 


148  CRIMINAL  DIVISION. 

songs,  or  other  open  words,  speak  any  thing  in  derogation,  deprav- 
ing or  despising  of  the  said  book,  or  shall  forcibly  prevent  the  read- 
ing of  it,  or  cause  any  other  service  to  be  read  in  its  stead,  he  shall 
forfeit  for  the  first  offence  100  marks,  for  the  second  400,  aad  for 
the  third,  shall  forfeit  all  his  goods  and  chattels,  and  suffer  imprison- 
ment for  life. 

*By  the  13  Eliz.  c.  12,  a  person  ecclesiastical,  advisedly  affirming 

any  doctrine  contrary  to  the  articles  established  at  a  con- 
[  *149  ]     vocation,  holden  at  London,  in  the  year  1562,  is  liable 

to  deprivation,  if  he  persist  in  his  error. 
By  the  3  J.  1,  c.  21,  whoever  shall  use  the  name  of  the  Holy 
Trinity  profanely  or  jestingly  in  any  stage  play,  interlude,  or  show, 
shall  be  liable  to  a  penalty  of  XIO. 

By  Stat.  9  and  10  Will.  III.  c.  32,  if  any  person  educated  in,  or 
having  made  profession  of  the  Christian  religion,  sliall  by  writing, 
printing,  teaching,  or  advised  speaking,  deny  any  one  of  the  persona 
of  the  Holy  Trinity  to  be  God,  or  assert  or  maintain  that  there  are 
more  gods  than  one,  or  deny  the  Christian  religion  to  be  true,  or  the 
holy  scriptures  to  be  of  divine  authority,  he  shall,  upon  the  first  of- 
fence, be  rendered  incapable  to  hold  any  office  or  place  of  trust ;  and 
for  the  second,  be  rendered  incapable  of  bringing  any  action,  being 
guardian,  executor,  legatee,  or  of  any  legacy  or  deed  of  gift,  or 
to  bear  any  civil  or  military  office  or  benefice  ecclesiastical,  and  shall 
suffer  imprisonment  for  three  years  from  the  time  of  conviction  ((i). 
*By  the  st.  53  G.  III.  c.  160,  s.  2,  the  provisions  of  the  last  cited 

act  are  repealed  so  far  as  they  relate  to  persons  denying, 
[  *150  ]     as  therein  mentioned,  the  Holy  Trinity. 

An  offender  against  the  st.  9  and  10.  W.  HI.  c.  32,  ia 
still  indictable  at  common  law,  for  a  statute  inflicting  a  new  punish- 
ment does  not  take  away  the  old  one,  unless  it  change  the  offence 
or  make  it  of  a  different  nature  (s). 

(di  By  sec.  2,  no  person  shall  be  prosecuted  under  the  act  for  words  spoken, 
unless  ihe  information  shall  be  given  on  oath  before  one  or  more  justices  withio 
four  days  after  such  words  spoken,  and  the  prosecution  shall  be  within  three 
months  afier  such  information. 

(e)  R.  V.  Carlile,  3  B.  &  A.  161.  R.  v.  Williams,  Howell's  St.  Tr.  vol.  26, 
p.  656  2  Str.  884.     Barnard,  K.  B.  162.     R   v.   Eaton,  1815.     In  the  case  of 


BLASPHEMY.  151 

*And  it  seems   that  the  st.   53  G.  III.  c.  160,  s.  2,     [  'ISl  ] 

does  not  alter  the  common  law,  but  only  removes  the  pen- 
alties  imposed  upon   persons   denying  the   Trinity  by  the  st.  9  and 
10  W.  III.    c.    32  ;  and  therefore    contumelious  remarks  on  the 
character  of  Jesus  Christ,  published  with  intent  to  impugn  the  au- 
thenticity of  the  scriptures  is  siill  an  offence  at  common  law  (/). 

Ihe  King  v.  Carlile,  3  B.  &  A.  161,  ihe  defendant  having  been  convicted  of  a 
blasphemous  libel  on  an  informalion  for  an  offence  at  common  law,  the  court 
held,  that  the  st  9  &  10  W.  111.  did  not  alter  the  common  law  offence,  but 
merely  gave  a  cumulative  punishment.  Best,  J.  in  giving  judgment,  observed, 
so  far  from  the  statute  of  William  containing  provisions  so  inconsistent  with  the 
common  law  as  to  operate  as  a  repeal  by  implication,  as  far  as  it  applies  to  the 
offence  of  libel,  it  seems  intended  to  aid  the  common  law.  It  is  called  "  Aa 
act  for  the  more  effectual  suppression  of  l)lasphemy  and  profaneness."  It 
would  ill  deserve  that  name  if  it  abrogated  the  common  law,  inasmuch  as  for 
the  first  offence  'it  only  operates  against  those  who  are  in  possession  of  offices 
or  in  expectation  of  them.  The  rest  of  the  world  might  with  impunity  blas- 
pheme God,  and  profane  the  ordinances  and  institutions  of  religion,  if  the 
common  law  punishment  is  put  an  end  to.  But  the  legislature  in  passing  this 
act  had  not  the  punishment  of  blasphemy  so  much  in  view,  as  the  protecting  the 
government  of  the  country,  by  preventing  infidels  fiom  getting  into  places  of 
trust.  In  the  age  of  toleration  in  which  that  statute  passed,  neither  church- 
men or  sectarians  wished  to  protect  in  their  infidelity  those  who  disbelieved  the 
Holy  Scriptures  ;  on  the  contrary,  all  agreed  that  as  the  system  of  morals  which 
regulated  their  conduct  was  built  on  these  scriptures,  none  were  to  be  trusted 
with  offices  who  showed  they  were  under  no  religious  responsibility.  This  act 
is  not  confined  to  those  who  libel  religion,  but  extends  to  those  who,  in  the  most 
private  intercourse  by  advised  conversation,  admit  that  they  disbelieve  the 
scriptures.  Both  the  cominon  law  and  this  statute  are  necessary,  the  first  to 
guard  the  morals  of  the  people,  the  second  for  the  immediate  protection  of  the 
government. 

The  defendant  was  afterwards  for  this  and  another  blasphemous  libel, 
sentenced  to  pay  a  fine  of  jG1500  ;  to  be  imprisoned  for  three  years  and  to  find 
sureties  for  his  good  behaviour  for  the  teim  of  his  life. 

(/)  R.  V.  Waddinglon,  1  B.  &  C.  26.  K.  B.  Mich.  Term.  1823. 

This  was  an  information  by  the  Attorney-General  against  the  defendant  for  a 
blasphemous  libel.  The  effect  of  the  libel  set  out  in  the  informalion  was  to 
impugn  the  authenticity  of  the  scriptures,  and  one  part  of  it  stated  that  Jesus 
Christ  was  an  impostor,  and  a  murderer  in  principle,  and  a  fanatic.  The  de- 
fendant was  tried  at  the  last  Middlesex  Sittings  after  last  Trinity  Term  andcon- 
victed.     Before  the  verdict  was  pronounced,,  one  of  the  jurymen  asked  the  Lord 


151  CRIMINAL  DIVISION. 

Chief  Justice  vvhelher  a  work  which  denied  the  divinity  of  our  Saviour  was  a 
libel.  The  Lord  Chief  Justice  answered,  that  a  woik  speaking  of  Jesus  Christ 
in  the  laiiguatje  used  in  the  puhhcaticn  in  question,  was  a  lil)el  ;  (>hrisii;inity 
being  a  pari  of  the  law  of  the  land.  The  defendant  in  person  now  moved  ftir  a 
new  iriil,  and  urged  that  the  Lord  Chief  Justice  had  misdirected  the  jury,  by 
stating  that  any  publication  in  which  the  divinity  of  Jesus  Christ  was  denied, 
was  an  unlawful  libel  ;  and  he  argued  that,  since  the  .OS  G.  III.  c.  IGO,  was 
passed,  the  denying  one  of  the  persons  of  the  Trinity  to  be  God  was  no  offence, 
and  consequently  that  a  publication  in  support  of  such  a  position  was  not  a 
libel. 

Abbott,  C.  .T.  I  told  the  jury  that  any  publication  in  which  our  Saviour  was 
spoken  of  in  the  language  used  in  the  publication,  for  which  the  defendant  wag 
prosecuted,  was  a  libel.  I  have  no  doubt  whatever,  that  it  is  a  libel  to  publish 
that  our  Saviour  was  an  impostor  and  a  murderer  in  principle. 

Bayley,  J.  It  appears  to  me  that  the  direction  of  my  Lord  Chief  Justice  was 
perfectly  right.  The  53  G.  IIL  c.  160,  removes  the  penalties  imposed  by  cer- 
tain statutes  referred  to  in  the  act,  and  leaves  the  common  law  as  it  st"od  be- 
fore. There  cannot  be  any  doubt  that  a  woik  which  does  not  merely  deny  tho 
Godhead  of  Jesus  Christ,  but  which  stales  him  to  be  an  impostor  and  a  murderer 
in  principle,  was  at  common  law,  and  still  is,  a  libel. 

Hulroyed,  J.  I  have  no  doubt  whatever,  that  any  publication  in  which  our 
Saviou  r  is  sjioken  of  m  the  langnr-ge  used  in  the  work  which  was  the  sul  ject 
of  this  prosecution,  is  a  libel.  The  direction  of  the  Lord  Chief  Justice  was 
therefore  right  in  point  of  law,  and  there  is  no  ground  fur  a  new  trial. 

B3£t,  J.  My  Lord  Chief  Justice  reports  to  us  that  he  told  the  jury  that  it 
was  an  indictable  offence  to  speak  of  Jesus  Christ  in  the  manner  he  is  spoken  of 
in  the  publication  for  wiiich  this  defendant  is  indicted.  It  cannot  admit  of  the 
least  doubt  that  this  direction  wis  corract.  Tha  53  G.  III.  c.  160,  has 
made  no  alteration  in  the  common  law  relative  to  libel.  If  previous  to  the 
passing  of  that  statute  it  would  have  been  a  libel  to  deny,  in  any  printed  work, 
the  divinity  of  the  second  person  in  the  Trinity,  the  same  publication  would  be 
a  libel  now.  The  53  Geo.  III.  c.  160,  as  its  title  expresses,  is  an  act  to  relieve 
persons  who  impugn  the  doctrine  of  the  Trinity  from  certain  penalties.  If  we 
lock  at  the  body  of  the  act  to  see  from  what  penalties  such  persons  are  relieved, 
we  find  that  they  are  the  penalties  from  which  the  1  VV.  &  M  Sess.  1,  c.  18, 
exempted  all  Protestant  dissenters  except  such  as  denied  tho  Triniiy  ;  and  the 
penalties  or  disabilities  which  the  9  and  10  W.  III.  imposed  on  those  who 
denied  the  Trinity.  The  1  W.  and  M.  Sess.  1,  c.  18,  is,  as  it  has  been  usually 
called,  An  Act  of  toleration,  or  one  which  allows  dissenters  to  worship  God  in 
the  mode  that  is  agreeable  to  their  religious  opinions,  and  exempts  them  from 
punishment  for  non-attendance  at  the  established  church  and  non-conformity  to 
its  rites.  The  legislature  in  passing  that  act,  only  ihouijht  of  easing  the  con- 
sciences of  dissenters  and  not  of  allowing  them  to  attempt  to  weaken  the  faith 
of  the  members  of  the  church.     The  9  and  10  W.  III.   was  to  give  security  to 


BLASPHEMY.  151 

the  government  by  rendering  men  incapable  of  office,  who  entertained  opinions 
hostile  to  the  established  religion.  The  only  penally  imposed  by  that  statute  i3 
exclusion  from  office,  and  that  penally  is  incurred  by  any  manifestations  of 
dangerous  opinions  without  proof  of  the  intention  in  the  person  entertaining  it, 
either  to  induce  others  to  be  of  that  opinion,  or  in  any  manner  to  disturb  per- 
sons of  a  different  persuasion.  This  statute  rested  on  the  principle  of  the  test 
];iws,  and  did  not  interfere  with  the  common  law  relative  to  blasphemous  libels. 
Ii  is  not  necessary  for  me  to  say  whether  it  be  libellous  to  argue  from  the  script- 
ures against  the  d'ivinity  of  Christ ;  that  is  not  what  the  defendant  professes  to 
do.  He  argues  against  the  divinity  of  Christ  by  denying  the  truth  of  the  script- 
ures. A  work  containing  such  arguments  published  maliciously  (which  the 
jury  in  this  case  have  found)  is  by  the  common  law  a  libel,  and  the  legislature 
has  never  altered  this  law,  nor  can  it  ever  do  so  whilst  the  Christian  religion  is 
considered  to  be  the  basis  of  that  law.  Rule  Refused. 


Vol.  ii.  77 


CnAPTER  VII. 


Of  Pulications  tending  to  subvert  Morality. 

[  "ISS  ]  *It  is  now  fully  established,  that  any  immodest  and  im- 
moral publication,  tending  to  corrupt  the  mind,  and  to 
destroy  the  love  of  decency,  morality,  and  good  order,  is  punishable 
in  the  temporal  courts  ;  though  some  doubt,  as  will  appear  from  a 
brief  review  of  the  cases^  seems  formerly  to  have  been  entertained 
upon  this  subject. 

Sir  Charles  Sedley  (a)  was  indicted  for  having  exposed  his  nalccd 
body  in  a  balcony  in  Covent  Garden,  an  1  for  having  committed  oth' 
er  indecent  acts  before  a  great  muliitude  of  people.  The  indictment 
was  openly  read  to  him  in  court ;  and  afterwards,  on  being  required 
to  take  his  trial  at  bar,  he  submitted  to  it.  From  the  different  re- 
ports of  this  case  ic  appears,  that  after  the  abolition  of  the  Star-cham- 
ber, the  Court  of  King's  Bench  was  considered  as  the  custos  morum, 
to  whom  the  cognizance  of  such  offences  most  properly  bc- 
[  *15G  ]  longed  ;  and  although  it  was  afterwards  contended,  'that 
judgment  was  given  against  the  defendant,  on'  account  of 
the  personal  violence  he  used  in  throwing  down  bottles  upon  the  mob, 
yet  from  the  language  of  the  reporters,  it  clearly  appears,  that  the 
Jud"-es  considered  the  offence  to  have  been  committed  against  mod- 
esty and  good  manners,  and  found  it  neceseary  to  interfere  in  those 
profligate    times  (6)  to  punish  such  immodest  practices,  which  the 

(a)  Keb.  R.  720.  2  Sir.  791      Foster  99.     Mich.  15  C.  2. 
{b)  During  those  licentious  times,  it  appears  to  have  been  of  little  tise  to  con- 
vict offenders  of  this  description ;  for  though  there  were  many   prosecutious 


LIBELS  AGAINST  MORALITY.  156 

court  snid  were  as  frequent,  as  if  not  only  Chrislianty  but  morality 
also  Imd  been  neglected. 

IIill  (c)  was  indicted  for  publishing;  some  obscene  poems  of  Lord 
Bochester  tending  to  the  corruption  of  youth,  but  going  abroad  Lo 
was  outlawed. 

Head  (d)  was  indicted  for  publishing  a  lascivious  and  obscene 
libel,  and  was  tried  and  convicted  before  Ld.  Holt,  C-  J.  Ic  was 
moved  in  arrest  of  judgment,  that  the  offence  was  merely  of  spirit- 
ual and  not  of  temporal  cognizance  ;  Ld.  Holt  was  of  opinion,  that  the 
offence  ought  to  be  punished  in  the  Ecclesiastical  Court, 
and  the  'Temporal  Courts  could  not  interferrs,  since  there  [  '157  ] 
was  no  precedent  for  it(e)  ;  and  Powell,  J.  regretted 
that  it  was  not  punishable  at  Common  Law,  since  it  certainly  tended 
to  the  corruptio:!  of  manners.  And  it  does  not  appear,  that  any 
judgment  was  ever  pronounced  against  the  defendant  (/). 

The  Attorney-General  exhibited  an  information  against  Curl,  for 
printing  and  publishing  an  obscene  book,  iniituled,  ''  Venus  in  the 
C  oistcr,  or  the  Nun  in  her  Smock."  The  defendant  having  been 
found  guilty,  it  was  moved  in  arrest  of  judgment,  that  the  offence 
was  of  mere  spiritual  cognizance,  that  in  the  reign  of  Charles  11. 
there  was  a  run  of  obscene  writngs,  for  wliich  no  prosecutions  were 
instituted  in  the  temporal  courts,  and  Read's  case  was  cited. 

It  was  answered  by  the  Attorney-General  (^),  that  to  destroy 
morality  is  to  destroy  the  peace  of  government,  since  government 
is  no  more  than  public  order ;  that  the  Spiritual  Courts  punish  only 
spiritual  defamation  bj  ivords,  but  that  if  it  be  reduced  to  writin"', 
ic  is  a  temporal  oflfence  punishable  as  a  libel. 

The  Judges  had  some  difficulty  at  first  in  giving  judg- 
ment against  the  defendant,  chiefly,  *on  account  of  Read's     [  *158  ] 
case ;  but  afterwards  they  gave  it  as  their  unanimous 


against  the  players  for  immodest  plays,  (hey  had  interest  enough  to  get  the  pro- 
ceedings stayed  before  judgment.     Frem.  Ent.  209,  213,  214,  215. 

lO  Sir.  7'JO.  Dig.  L.  L.  60      Mich.  10  W.  Ill, 

(d)  Easter,  6  .\iin.  Fost.  Rep.  98,  99. 

(ci  Sir  C.  Sediey's  case  seems  lo  be  a  precedent  in  principle. 

(/)  2  Str.  792.  (g)  Sir  Philip  Yorke, 


158  CRIMINAL  DIVISION. 

opinion,  that  this  was  a  temporal  oflfence.  They  said,  it  was  plain, 
that  the  force  used  in  Sir  C.  Sedley^s  case  was  but  a  small  ingre- 
dient in  the  judgment  of  the  Court,  who  fined  him  ,£2000.  And 
that  if  the  force  was  all  they  went  upon,  there  was  no  occasion  to 
talk  of  the  Courts  being  custos  morum  of  the  King's  subjects ;  that 
if  Read's  case  were  to  be  adjudged,  they  should  rule  it  otherwise  ; 
and,  therefore,  gave  judgment  for  the  King. 

An  information  (Ji)  was  granted  against  John  Wilkes,  for  print- 
ing and  publishing  an  obscene  and  impious  libel,  intituled  "  An 
Essay  on  Woman,"  Upon  which  he  was  convicted,  and  sentenced 
to  pay  a  fine  of  £500,  to  be  imprisoned  for  twelve  months,  and  to 
find  security  for  his  good  behaviour  for  seven  years. 

Ever  since  the  decision  in  Curl's  case,  it  seems  to  have  been 
settled,  that  any  publication  tending  to  the  destruction  of  the  mor- 
als of  society,  is  punishable  by  indictment ;  and  a  great  number  of 
convictions  have  since  taken  place,  for  publishing  and  vending  im- 
modest books  and  pictures. 

With  respect  to  the  extent  of  the  offence  and  mode  of  publica- 
tion. 
[  *159  ]  Although  many  vicious  and  immoral  'acts  are  *not  in- 

dictable, yet  if  they  tend  to  the  destruction  of  morality 
in  general,  if  they  do  or  may  affect  the  mass  of  society,  they  be- 
come offences  (J)  of  a  public  nature.  In  the  cases  referred  to, 
with  the  exception  of  Sir  Q.  Sedley's,  the  defendants  were  indicted 
for  printed  libels ;  the  principle,  however,  of  those  cases,  and  the 
express  decision  in  Sir  C.  Sedle/s,  seem  to  comprehend  other  in- 
decent and  immoral  communications,  especially  when  made  before 
a  large  assembly,  such  as  the  performance  of  an  obscene  play, 
which  offence,  it  seems,  has  formed  the  ground  of  many  prosecu. 
tions  (/c). 

By  the  stat.  3  G.  IV.  c.  40,  s.  3,  all  persons  openly  exposing 
or  exhibiting  in  any  street,  road,  public  place,  or  highway,  any  in- 
decent exhibition,  or  openly  and  indecently  exposing  their  persons^ 
shall  be  deemed  rogues  and  vagabonds  within  the  meaning  of  the 
act. 

(h)  4  Burr.  2527.  (»)  Sid.  168  *  {k     Str.  790- 


CHAPTER  VIII, 


Publications   against   the  Constitution  &c. 

'It  seems  to  be  clear  beyond  dispute,  that  any  member  [  *160  ] 
of  the  state  has  a  right  to  suggest  improvetnents  in  the  con- 
stitution (a),  and  to  point  out  what  he  conceives  to  be  defects,  and 
that  though  he  be  mistaken,  he  does  not  offend  criminally,  unless  he 
be  actuated  by  an  intention  to  work  mischief,  evidenced  by  the  licen- 
tious and  insulting  manner  in  which  he  treats  of  the  established  con- 
stitution and  ordinances  of  the  country.  These,  so  long  as  they  ex- 
ist, ought  to  be  secured  from  contumely  and  insult,  least  men's 
minds  should  be  excited  on  the  one  hand  to  effect  a  hasty  and  ill 
judged  demolition  of  the  political  fabric,  or  on  the  other 
should  be  provoked  to  acts  of  violence  *in  defence  of  a  [  *161  ] 
political  establishment  which  they  hold  in  reverence  [1]. 

It  is  necessarily  incident  to  every  permanent  form  or  system  of 
government  to  make  provision  not  merely  for  its  continuance,  but 
for  its  secure  continuance.  To  that  security  the  confidence  and  es- 
teem of  the  people  is  indispensable,  and  therefore  it  is  essential  to 

{a)  Lord  Loughborough,  ia  ihe  debate  upon  the  Libel  Bill,  observed,  "  Every 
man  may  publish,  at  his  discretion,  his  opinions  concerning  forms  and  systems  of 
government;  if  they  be  wise  and  enlightening,  ihe  world  will  gain  by  ihem— if 
they  be  weak  and  absurd,  they  will  be  laughed  at  and  forgotten — if  they  be  bona 
f,  e,  ihey  cannot  be  criminal,  however  erroneous  " 

[I]  The  courts  of  the  Unitid  Slates  have  no  common  law  jurisdiction  in  cases 
of  libel  against  the  National  Government.  The  U.  S.  v.  Hudson  and  Goodwin, 
7  Cranch  32. 


161  CRIMINAL  DIVISION. 

proliibit  malicious  attempts  to  produce  the  mischiefs  of  political  rev- 
olution, by  rendering  the  established  constitution  odious  to  the  soci- 
ety -which  has  adopted  it. 

By  the  13  Eliz.  c.  1,  it  is  a  misdemeanor,  punishable  wi^h  forfeit- 
ure of  goods  and  chattels,  for  any  person  to  hoM,  affirm,  or  maintain, 
thit  the  common  laws  of  the  realm,  not  altered  by  parliament,  ought 
not  to  direct  the  right  of  the  crown  of  England. 

By  the  6th  Ann,  c.  7,  s.  7,  it  is  made  high  treason  to  affirm  by 
Tvriting,  or  printing,  that  the  king  is  not  the  lawful  and  rightful  king 
of  the  realm,  or  that  any  other  person  has  title  to  the  same  other- 
wise than  according  to  the  Bill  of  Rights,  the  Act  of  Settlement, 
and  the  Act  of  Union,  or  that  parliament  has  not  authority  to  limit 
the  descent  of  the  crown. 

One  of  the  earliest  cases  in  which  an  opinion  is  given  upon  the  in- 
dictable quality  of  words  abstractedly  reflecting  upon  the  constitu- 
tion, appears  to  have  been  given  in  the  forty-first  year 
[  *162  ]  of  *Elizabeth  ;  where  it  was  adjudged,  that  no  indictment 
lay  for  saying  that  the  laws  of  the  realm  were  not  the 
laws  of  God,  because  true  it  is  they  are  not  the  laws  of  God  ;  but 
that  it  would  be  otherwise  to  say  that  the  laws  of  the  realm  are 
contrary  to  the  laws  of  God  (6). 

In  the  loth  (c)  year  of  Ch.  II.  Brewster  was  a  second  time 
convicted  for  printing  and  pubHshing  a  libel,  called  "  The  Phoenix ; 
or  the  solemn  League  and  Covenant,"  in  which  it  was  declared  that 
a  king  abusing  his  power  may  be  opposed  ;  that  if  he  attempt  to 
enforce  his  encroachments  by  artns,  he  may  be  resisted,  because  he 
has  violated  the  contract  and  covenant  made  between  himself  and 
the  people,  and  that  the  breaking  this  covenant  was  a  greater  sin  than 
breaking  a  commandment. 

Harrison  (c?)  was  convicted  on  an  information  charging  him  with 
having  published  concerning  the  government  of  England,  and  the 
traitors  who  adjudged  King  Charles  I.  to  death  :  that  the  govern- 
ment of  the  kingdom  consists  of  three  estates,  and  that  if  a  rebellion 
should  happen  in  the  kingdom,  unless  that  rebellion  was  against  the 

(b)  2  Roll.  Ab.  78.  (c)  Hil.  15  Ch.  11.  K.  B.  Dig.  L.  L.  72. 

id)  R.  V.  Harrison,  3  Keb.  841.  Ventr.324.  Dig.  L.  L.  66 


LIBELS  AGAINST  THE  CONSTITUTION.        1G3 

throe  estates,  it  was  no  rebellion.  It  was  moved  in  ar- 
rest of  judgment,  that  there  can  be  no  rebellion  *against  [*163  ] 
the  king,  but  it  must  be  against  the  three  estates,  who 
are  all  united  in  the  king.  But  the  court  overruled  the  objection, 
since  by  13  C.  II.  c.  1,  it  is  expressed,  that  neither  one  nor  both 
ILjusos  of  Parliament  can  make  war  against  the  king,  under  any 
pretence  whatever ;  and  that  though  there  be  three  estates  as  to 
making  la-svs,  there  is  but  one  authority  as  to  war. 

And  the  court  supposing  that  the  words  tended  to  set  on  foot  the 
position  upon  which  the  war,  levied  in  1641,  by  the  two  houses 
against  the  king  was  grounded,  were  much  displeased  that  counsel 
would  undertake  to  defend  them. 

The  king  had  judgment,  and  the  defendant  brought  error  in  parlia- 
ment. 

So  a  treatise  upon  hereditary  right  has  been  held  to  be  a  libel, 
though  containing  no  reflection    upon  the  existing  government  (e). 

Tutchin  was  convicted(/)  for  publishing,  in  a  paper  called  the  Ob. 
servator,  that  there  were  mismanagements  in  the  government  ;  that 
for  such  they  had  a  right  to  call  their  governors  to  account,  to  dis- 
place the  ministers,  dethrone  the  reigning  soverergn,  and  to  transfer 
their  allegiance  to  ;Yhom  they  pleased. 

Dr.  Browne  (^)  was  convicted  for  writing  a*libe],  en-     [  *1G1  ] 
titled  "  Mercurius  Politicus,"  which  asserted,  that  "  the 
late  revolution  was  the  destruction  of  the  laws  of  England." 

Richard  Nutt  (Ji)  was  convicted  upon  an  information,  for  publish- 
ing a  libel,  entitled  "  The  London  Evening  Post,"  in  whicli  it  was 
suggested,  that  the  revolution  was  an  unjust  and  unconstitutional 
proceeding  ;  and  the  limitation  established  by  the  act  of  settlement 
was  represented  as  illegal ;  and  it  was  asserted  that  the  revolution 
and  settlement  of  the  crown,  as  by  law  established,  had  been  attend- 
ed with  fatal  and  pernicious  consequences  to  the  subjects  of  this  king 
dom. 

(e)  The  Queen  v.  Bedford,  2  Str.  789. 

(/)  2  Ld.  Ray.  lOGl.     Salk.  51.     6  Mod.  268, 

(g)  11  Mod.  86. 

(A)  Dig.  L.  L.  68.  27  G.  II. 


164  CRIMINAL  DIVISION. 

In  the  prosecutions  of  Shebbeare,  upon  an  information  for  a  libel, 
and  of  Thomas  Paine,  on  an  information  for  a  similar  offence,  one 
ingredient,  though  mixed  up  with  many  others,  was  an  attack  upon 
ihe  justice  and  policy  of  the  revolution,  representing  it  as  the  origin 
and  foundation  of  many  political  evils  and  calamities  (i). 

*So  far  as  to  publications  which  principally  concern  abstractedly 

the  political  establishment  and  constitution  of  the  state  ; 

[  *165  ]     another  class,  and  one  *much  more  strongly  and  frequent- 

(i)  An  information  was  exhibited  by  the  Attorney-General  against  the  defen- 
dant for  printing  and  publishing  a  certain  false,  wicked,  scandalous,  seditious, 
and  malicious  libel,  intituled  "  A  Sixth  Letter  to  the  People  of  England,  on  the 
Progress  of  National  Ruin,  in  which  it  is  shown  that  the  present  grandeur  of 
France,  and  the  calamities  of  this  Nation,  are  owing  to  the  influence  of  Hanover 
on  the  Councils  of  England,"  tending  to  traduce  the  revolution,  and  to  represent 
it  as  the  foundation  of  all  those  imaginary  evils  and  calamities  which  he,  the 
said  defendant,  would  falsely  insinuate  the  subjects  of  this  kingdom  did  labour 
under,  and  also  to  asperse  the  memory  of  King  William  the  Third  and  of  King 
George  the  First,  and  to  represent  the  public  measures  which  were  taken  and 
pursued  during  the  course  of  their  respective  reigns,  as  wicked,  corrupt,  and 
fatal  measures  to  this  kingdom,  and  also  to  asperse,  scandalize,  and  vilify  the 
late  king  and  his  administration  of  the  government  of  this  kingdom,  and  to 
make  it  thought  that  the  public  affairs  of  this  kingdom  were  in  the  most  un- 
happy and  declining  state,  and  that  the  subjects  of  this  kingdom  were  unneces- 
sarily and  most  intolerably  loaded  and  oppressed  with  taxes,  debts,  and  s\ib- 
sidies,  and  also  to  insinuate  that  the  late  king  had  no  concern  for  the  people  of 
Englund,  nor  any  regard  for  the  interest,  honour,  or  welfare  of  this  kingdom, 
but  that  the  treasure  and  riches  of  this  kingdom  were  misapplied,  wasied,  and 
dissipated  in  support  of  the  electorate  of  Hanover  and  his  German  dominions. 

The  defendant  was  found  guilty  of  this  libel ;  was  fined  £5,  sentenced  to  the 
pillory,  and  imprisoned  three  years.  Hilary  Term,  31  Geo.  H  1738,  K.  B. 
MSS.     The  King  v.  Dr,  John  Shebbeare. 

The  King  v.  Paine.  This  was  an  information  against  the  defendant,  filed  by 
the  Attorney-General,  as  the  author  and  publisher  of  a  malicious  libel,  the  ten- 
dency of  which  was  "  to  traduce  and  vilify  the  late  happy  revolution,  the  set- 
tlement of  the  crown  and  regal  government,  as  by  law  established,  and  also  the 
Bill  of  Rights,  the  legislature,  government,  laws,  and  parliament  of  tliis  king- 
dom." The  libel  likewise  contained  many  seditious  and  scandalous  reflections 
upon  his  present  majesty.  This  libel  was  tried  before  Lord  Kenyon  and  a  spe- 
cial jury,  who,  immediately  after  a  speech  from  Mr.  Paine's  counsel,  pro- 
nounced the  defendant  guilty,  without  any  address  or  direction  from  the  judge. 

The  defendant  never  appeared  to  receive  the  judgment  of  the  court,  and  was 
consequently  outlawed.     32  Geo.  UL  B.  R.  1792,  MS.     The  King  v.  Paine. 


LIBEL  AGAINST  THE  KING.  166 

]y  tending  to  produce  public  irritation  and  disorder,  con- 
sists of  raaruious  publicaiions  of  a  more  personal  nature,     [  *166  ] 
aflfeciing  either  the  king  or  his  government,  or  ministers 
of  justice,  or  eiiher  house  of  parliament,  and  tending  to  render  them 
odious  or  contemptible. 

Words  (^)  spoken,  have  frequently  been  deemed  overt  acts  of 
treason  for  which  the  speakers  have  suffered.  Two  persons  were 
executed  for  unguarded  expressions  in  the  reign  of  Edward  IV.  the 
one  a  citizen,  wlio  said  he  would  make  his  son  heir  to  the  Crowa 
(alluding  to  the  sign  of  the  house  in  which  he  lived)— the  other,  a 
gentleman,  whose  favourite  buck  the  king  had  killed  in  hunting, 
whereupon  the  owner  wished  h  horns  and  all  in  the  belly  of  him  who 
had  counselled  the  king  to  kill  it,  and  the  king  being  his  own  coun- 
sellor on  the  occasion,  the  words  were  construed  *into  a 
treasonable  expression  against  the  king  himself.  [  *167  ] 

In  the  reign  of  Henry  the  Eighth,  not  only  was  a  peer 
of  the  reaUn  charged  with  having  uttered  treasonable  words,  whicli 
at  most  amounted  to  slander  of  his  ministers,  but  a  gentleman  was 
charged  with  having  treasonably  expressed  his  displeasure  at  such 
proceedings  (Q. 

But  in  less  arbitrary  times,  the  legality  of  such  proceedmgs  has 
been  much  questioned ;  and  the  rigour  of   the  doctrine  has  at  all 

(ft)  Hale's  PI.  Cro.  C  115.     See  also  Hugh  Pine's  case,  Cro.  Car.  117,  where 
other  capital  convictions  for  speaking  words  in  that  reign  are  cited. 

(I)  Surrey,  anno  tricesi.no  Henrici  Octavi  Henricus  M.rchia,  Exon  prarf^io- 
rie  dicebat.  I  like  well  of  the  proceedings  of  Cardinal  Pool,  et  ulterius.  But 
I  like  not  the  proceedings  of  this  realm,  and  I  trust  to  see  a  change  of  the  world, 
et  ulterius  I  trust  once  to  have  a  fair  day  vpon  those  knaves  which  rule  about 
the  kin  cr  et  ultrius.  I  trust  to  give  them  a  Buffet  one  day.  Et  quod  Nicolaus 
Carew*Miles,  maliiiose,  murmurai-it  indignatus  fuit;  et  dicebat  hac  verba  An- 
glicana'  1  marvel  greatly  that  the  indictment  against  the  Lord  Marquesse  was 
so  secretly  handled,  and  to  what  purpose,  for  the  like  was  never  seen.  See  Hugh 
Pine's  case,  Cro.  Car.  117,  where  these  and  a  number  of  other  precedents  were 
collected  and  considered  by  the  judges. 

It  is  well  known  that,  under  the  pretext  that  scandal  of  the  magistrates 
amounted  to  the  crimen  Icbscb  majestatis,  Sylla,  Tiberius,  and  others,  committed 
many  assassinations  at  Rome. 

Vol.  II.  78 


168  CRIMINAL  DIVISION. 

events  been  greatly  mitigated.  It  has  been  most  hu- 
[  *168  ]  manely  observed  (w),  that  words  may  be  spoken  *in 
heat,  without  any  intention  ;  or  be  mistaken,  perverted, 
or  mi'5remembered  by  the  hearer ;  their  meaning  depends  always 
on  their  connection  with  other  words  and  things ;  they  may  signify 
differently,  even  according  to  the  tone  of  voice  with  which  they 
are  delivered  ;  and  sometimes  silence  is  more  expressive  than  any 
discourse.  Since,  therefore,  there  can  be  nothing  more  equivocal 
and  ambiguous  than  words,  it  would  be  unreasonable  to  make  them 
amount  to  high  treason.  Of  this  opinion  were  Stamford,  Ld.  Coke, 
Ld.  Hale  (?i),  Sir  Michael  Foster  (o),  and  Sir  William  Blackstone 
(^),  whose  opinion  has  just  been  cited ;  and  in  the  reign  of  Charles 
the  First,  some  very  atrocious  words  having  been  spoken  concerning 
the  king  by  one  Pine,  all  the  judges  certified,  that  "  though  the 
words  (5)  were  as  wicked  as  they  might  be,  yet  that  they  were  no 
treason ;  for  unless  it  be  by  some  particular  statute,  no  words  will 
be  treasonable." 

It  seems  to  be  clear  (r),  however  that  words  joined  to  an  act  may 

explain  it,  and  that  words  of  persuasion  to  kill  the  king,  or 

[*169]     manifesting  an  *agreement,  or  consultation,  or  direction 

to  that  purpose,  are  sufficient  overt  acts   of  compassing 

his  death. 

It  has  frequently  been  held  that  words  cominitted  to  print  or 
writing,  and  published,  amount  to  an  overt  act  of  treason,  in  proof 
of  the  compassing  the  king's  (s)  death  ;  but  even  in  such  case  it 
eeems  that  a  publication  is  not  necessary,  though  in  arbitrary  times, 
the  contrary  has  been  adjudged,  particularly  in  the  instances  of 
Peachum  (0?  a  clergyman,  and  of  Algernon  Sydney  (m)  ;  the  form- 
er of  whom  was  convicted  for  treasonable  passages  in  a  sermon  never 
preached,  and  the  latter  for  some  speculative  opinions  contained  in 

(m)  4  Black.  Coram.  79.  (n)  1  Hale  111,  323. 

(0)  Fost.  Cr.  L.  200.  (p)  4  Bl.  Com.  80. 

iq)  Cro.  Car.  125.  See  Haw.  PI.  Cr.  c.  17,  s.  32,  33,  34,  35,  &c.  Fost. 
Cr.  L.  200.     1  Hale  111,  323. 

(r)  Haw.  PI.  Cr.  c.  17,  s.  37.     Fost.  202. 

(s)  2  Roll.  89,  90.  Fos.  346.  11  Modern  323.  1  St-  Tr.  977.  3  St.  Tr^ 
228.     5  Bac.  Abr.  117. 

(0  Cro.  Car.  125.  (u)  Foster  198. 


LIBELS  AGAINST  THE  KING.  169 

papers  discovered  in  his  private  closet ;  but  so  unsatisfactory  did  the 
grounds  of  these  convictions  appear,  that  Peachum  was  not  exe- 
cuted, and  the  attainder  of  Sydney  was  reversed. 

The  character  and  title  of  sovereign  are  guarded  by  the  following 
legislative  provisions.      The  st.    3   Ed.   I.  c.  34,  (x) 
enacts,  that  none  be  *so  hardy  to   tell  or  publish  any     [  •170  ] 
false  news  or  tales,  whereby  discord,  or  occasion  of  dis- 
cord, may  grow  between  the    king  and  his  people,  or  the  great  men 
of  the  realm  (^z). 

(T)  The  Stat.  3  Ed.  I.  c.  34,  and  2  R.  IT.  st.  I.e.  5,  touching  telling  of 
news,  were  confirme.1  by  the  stat.  1  and  2  Phil,  and  Mary  c.  3,  (since  expired) 
which  enacted,  that  justices  of  peace  in  every  shire,  city,  &c.  shall  have  au- 
thority to  hear  and  determine  the  said  offences,  and  to  put  the  said  two  statutes 
in  execution.  And  that  if  any  person  shall  be  convicted  or  attainted  for  speak- 
in(T  maliciously,  of  his  own  imagination,  any  false,  seditious,  and  slanderous, 
news,  saying,  or  tales  of  the  king  or  queen,  then  he  shall  for  his  first  offence  be 
set  on  the  pillory  in  some  market  place  near  where  the  words  were  spoken,  and 
have  both  his  ears  cut  off",  unless  he  pay  to  the  queen  an  hundred  pound  within 
one  month  after  judgment  given,  and  also  shall  be  three  months  imprisoned  ; 
and  if  he  shall  speak  any  such  slanderous  and  seditious  news  or  tales,  of  the 
speaking  or  report  of  any  other,  then  he  shall  be  set  on  the  pillory,  and  have 
one  of  his  ears  cut  off",  unless  he  pays  an  hundred  marks  to  the  queen's  use  with- 
in one  month  after,  and  shall  be  one  month  imprisoned  ;  and  if  he  shall  do  it 
by  bouk,  rhyme,  ballad,  letter,  or  writing,  he  shall  have  his  right  hand  stricken 
off.  And  if  any  person  being  once  convicted  of  any  offence  aforesaid,  do  after- 
ward offend  he  shall  be  imprisoned  during  his  life,  and  forfeit  all  his  goods  and 
chattels.     And  see  4  and  5  Ph.  &  M.  c.  9.  1  Eliz.  c.  6,  (now  expired.) 

iy)  See  the  stat.  1  W.  and  M.  st.  2,  c.  2,  s.  9.  By  a  statute  in  the  reign  of 
H.  VIII.  it  was  made  high  treason  to  write  or  devise  by  words,  or  in  writing,  or 
to  imagine,  invent  or  attempt  any  bodily  harm  to  be  done  to  the  king,  the  queen, 
or  their  heirs  apparent.  By  a  statue  of  Elizabeth,  it  was  made  high  treasun  to 
intend  destruction  or  bodily  harm  to  the  queen,  or  to  affirm  that  the  laws  and 
statutes  do  not  bind  the  right  of  the  crown,  and  the  descent,  limitation,  inheri- 
tance, and  government  thereof. 

And  whosoever  shall,  during  the  queen's  life,  by  any  booke  or  worke,  writtea 
or  printed,  expressly  affirm,  before  the  same  be  established  in  parliament,  that 
any  one  particular  person  is,  or  ought  to  be  heir  and  successor  to  the  queen, 
except  the  natural  issue  of  her  body,  shall,  for  the  first  offence,  be  a  whole  year 
imprisoned,  and  forfeit  half  his  goods;  and  for  the  second,  shall  incur  the 
penalties  of  a  praemunire.     These  laws  expired  on  the  demise  of  that  queen . 


170  CRIMINAL  DIVISION. 

[  *171  ]  *By  6  Ann.  c.  7,  s.  7,  it  is  made  high  treason  to 
affirm,  by -writing  or  printing,  that  the  king  is  not  the  law- 
ful and  rightful  king  of  the  realm,  or  that  any  other  person  has  title 
to  the  same,  otherwise  than  according  to  the  Bill  of  Rights  (?/),  the 
Act  of  Settlement  (2),  and  the  Act  of  Union,  or  that  parhament 
has  not  authority  to  Hmit  the  descent  of  the  crown. 

By  the  36th  Geo.  Ill,  c.  7,  it  is  enacted,  that  if  any  person  shall 
imagine  or  intend  death,  destruction,  or  any  bodily  harm  to  the 
person  of  the  king,  or  to  depose  him,  or  to  levy  war,  in  order  by 
force  to  compel  him  to  change  his  measures  or  coun- 
[  •172  ]  sels,  &c.  and  shall  express  and  declare  *such  intentions 
by  printing,  uriting,  or  any  overt  act,  he  shall  suffer 
death  as  a  traitor. 

And  that  if  any  one  by  writing,  printing,  preaching,  or  other 
speaking,  shall  use  any  words  or  sentences  to  incite  the  people  to 
hatred  and  contempt  of  the  king,  or  of  the  government  and  con- 
stitution of  this  realm,  he  shall  receive  the  punishment  of  a  high 
misdemeanor  ;  that  is,  fine,  imprisonment,  and  pillory,  and  for  a 
second  offence,  he  is  subject  to  a  similar  punishment,  or  transporta- 
tion for  seven  years,  at  the  discretion  of  the  court.  The  time  of 
prosecution  under  the  act  is  limited  to  six  months,  and  the  statute 
does  not  affect  any  prosecution  at  common  law,  unless  a  prosecution 
be  previously  commenced  under  the  statute. 

At  common  law,  any  contempt  of  the  king's  person  amounts,  on 
principles  of  policy  too  obvious  for  observation  or  comment,  to  a  high 
misdemeanor.  Such  a  contempt  may  either  consist  in  the  impuiing 
to  him  the  want  of  capacity  or  integrity  (a),  in  charging  him  with  a 
breach  of  his  coronation  oath  (6),  cursing  him,  wishing  him  ill,  spread- 
ing false  rumors  concerning  his  intentions  (c), — or,  in 
[  *17o  ]  short  by  maliciously  asserting  'anything  concerning  him, 
which  tends  to  lessen  him  in  the  esteem  of  subjects,  weak- 

By  an  act  in  the  reign  of  Ed.  VI.  which  expired  with  that  king-,  it  was  made 
high  treason  to  assert  in  print  or  in  writing,  that  he  was  not  supreme  head  of 
the  church. 

{]/)  See  note  (y)  ante  p.  170.  (?)  12  and  13  W.  III.  c.  2. 

(a)  Hawk.  P.  C.  c.  23.     4BI.  Com.  120. 

(b)  Noy  105.     Haw.  PI.  Cr.  c.  23.  s.  5.         (c)  See  3  E.  I.  c.  34. 


LIBELS  AGAINST  THE  KING.  1T3 

en  his  government,  or  raise  jealou<^ic3  between  him  and  his  people. 
These  are  considered  as  high  contempts  and  misprisions,  and  are  pun- 
ishable as  misdemeanors  at  common  law. 

?o  to  deny  the  king's  title  to  the  crown,  or  to  raise  doubts  con* 
ceriiino-  it,  in  unadvised  discourse,  would  amount  to  a  contempt  at 
common  law ;  and  to  do  it  deliberately  and  advisedly,  if  it  did  not 
constitute  treason,  would  at  least  subject  the  offender  (c^)  to  the  pen- 
alties of  a  praemunire. 

lu  the  reign  of  Elizabeth  (g),  all  the  Justices  and  Barons  of  the 
Coif  assembled  in  Serjeant's  Inn,  concerning  a  book,  devised  by 
one  Brown,  containing  the  following  passage,  "  Every  preacher  run> 
neth  to  the  queen  now,  as  though  he  were  to  be  directed  by  her  to 
tarry  for  reformations  to  be  had  for  matters  of  the  church.  If  the 
magistrates  will  agree,  all  is  well ;  if  they  will  not,  they  are  not  of 
the°church,  and  it  is  a  shame  to  tarry  for  them,  or  for  a  parliament, 
or  proclamation."  And  ic  was  held  by  all,  that  this  was  a  moving 
of  insurrection   and  sedition  (/)• 

*In  the  Digest  (.9)  of  the  Law  of  Libel  it  is  said,  that  [  *174  ] 
at  the  same  meeting.  Sir  Elmand  Anderson,  Ch.  J.  of 
the  Common  Pleas,  propounded  the  following  case  to  his  brethren  :— 
A  person  had  caused  the  arms  of  the  queen  to  be  painted  upon  a 
post  in  a  church  in  Suffolk,  with  this  inscription  painted  near  them, 
"  I  know  thy  works,  that  thou  art  neither  hot  nor  cold  ;  I  would  thou 
wert  either  hot  or  cold  :  therefore,  because  thou  art  lukewarm,  it 
will  come  to  pass  that  I  will  spew  thee  out  of  my  mouth."  But 
the  justices  came  to  no  resolution. 

John  Wilkes  (/t)  was  convicted  upon  an  information  filed  by  the 
Attorney  General  (0,  for  printing  and  publishing  a  malicious  libel, 

{d)  Black.  Comm.  123.     Haw.  Pi.  Cr.  c.  17,  s.  35,  supra  171. 

(c)  Dior.  L.  L.  65, 

(/)  The  qi.e.<tion  proposed  was,  whether  the  publication  was  an  ofTence 
within  the  23(1  Eliz.  c.  2,  which  was  a  temporary  stat.  ;  bui  under  the  construc- 
.tion  which  the  judges  put  upon  this  book,  it  was  a  libel  at  common  law. 

(g)  D.  L    L.  66.      Sav.  49. 

(h)  Dig.  L.  L.  69.  Informations  were  also  filed  against  Kearsley  and  Wil- 
liams, for  printing  and  publishing  the  same. 

(i)  Charles  Yorke,  Esq. 


174  CRIMINAL  DIVISION. 

entitled  The  North  Briton,  No.  45,  tending  to  vilify  and  traduce  the 
Icing  and  his  government — to  impeach  and  disparage  his  veracity  and 
honour — and  to  represent  and  make  it  believed  that  his  majesty's 
most  gracious  speech,  delivered  from  his  throne  to  the  pailiament, 

on  Tuesday  the  19ih  day  of  April,  1763,  contained  many 
[  *175  ]     falsities  and  gross  *impositicns  upon  the  public  ;  and  that 

lis  majesty  had  suffeied  the  honour  and  dignity  of  his 
crown  to  be  sunk  and  prostitutec",  and  the  interests  of  his  subjects 
and  allies  to  be  treacherously  betrayed  ;  and  also  to  render  the  king 
and  his  government  contemptible  and  odious,  and  to  excite  tumults, 
commotions,  and  insurrections,  &c.  &c. 

An  information  (A:)  was  filed  by  the  Attorney -General  against  the 
printer  and  proprietor  of  the  Morning  Chronicle  newspaper,  for  pub- 
lishing the  following  paragraph,  with  a  malicious  intent  to  alienate 
from  the  king  the  affections  of  his  subjects  : — "  What  a  croAvd  of 
blessings  rush  upon  one's  mind,  that  might  be  bestowed  upon  the 
country,  in  the  event  of  a  total  change  of  system.  Of  all  monarchs, 
indeed,  since  the  revolution,  the  successor,  of  George  the  Third  will 
have  the  finest  opportunity  of  becoming  nobly  popular." 

Lord  Ellenborough,  C.  J.  in  summing  up  to  the  jury  observed, 
"  The  first  sentence  admits  of  an  innocent  interpretation — '  Wliat  a 
crowd  of  blessings  rush  upon  one's  mind,  that  might  be  bestowed 
upon  the  country,  in  the  event  of  a  total  change  of  system.'  Ihe 
fair  meaning  of  the  expression,  '  change  of  system,'  I  think,  is  a 

change  of  political  system,  not  a  change  in  the  *frame  of 
[  "176  ]     the  established  government,  but  in  the  measures  of  policy 

which  have  been  for  some  time  pursued.  By  total 
change  of  system, is  certainly  not  meant  subversion  or  demolition  ;  for 
the  descent  of  the  crown  to  the  successor  of  his  majesty  is  mentioned 
immediately  after.  The  writer  goes  on  to  speak  of  the  blessings  that 
may  be  enjoyed  upon  the  accession  of  the  Prince  of  Wales ;  and 
therefore  cannot  be  understood  to  allude  to  a  change  inconsistent 
with  the  full  vigor  of  the  monarchical  part  of  the  constitution.  Now 
I  do  not  know  that  merely  saying  there  would  be  blessings  from  a 
change  of  system,  without  reference  to  the  period  at  which  they 

(k)  R.  V.  Lambert  and  Perry,  2  Camp.  398. 


LIBELS  AGAINST  THE  KING.  176 

may  be  expected,  is  expressing  a  Avish  or  a  sentiment  that  may  not 
be  innocently  expressed  in  reviewing  the  political  condition  of  tlie 
country.  The  information  treats  this  as  a  libel  on  the  person  of  his 
majesty,  and  his  personal  administration  of  the  government  of  the 
country.  But  there  may  be  error  in  the  present  system,  without 
any  vicious  motives,  and  with  the  greatest  virtues,  on  the  part  of 
the  reigning  sovereign.  He  may  be  misled  by  the  ministers  he 
employs,  and  a  change  of  system  may  be  desirable  from  their  faults. 
He  may  himself,  notwithstanding  the  utmost  solicitude  for  the  happi- 
ness of  his  people,  take  an  erroneous  view  of  some  great  question  of 
policy,  either  foreign  or  domestic.  I  know  of  but  one 
"Being  to  whom  error  may  not  be  imputed.  If  a  person  [  *177  ] 
•who  admits  the  wisdom  and  virtues  of  his  majesty, 
laments  that  in  the  exercise  of  these  he  has  taken  an  unfortunate 
and  erroneous  view  of  the  interests  of  his  dominions,  I  am  not  pre- 
pared to  say  that  this  tends  to  degrade  his  majesty,  or  to  alienate 
the  affections  of  his  subjects.  I  am  not  prepared  to  say  that  this  is 
libellous :  but  it  must  jae  with  perfect  decency  and  respect,  and 
■without  any  imputation  of  bad  motives.  Go  one  step  further,  and 
say  or  insinuate,  that  his  majesty  acts  from  any  partial  or  corrupt 
view,  or  with  an  intention  to  favor  or  oppress  any  individual  or  class 
of  men,  and  it  would  become  most  libellous.  However,  merely  to 
represent  that  an  erroneous  system  of  government  obtains  under  his 
majesty's  reign,  I  am  not  prepared  to  say  exceeds  the  freedom  of 
discussion  on  political  subjects  which  the  law  permits.  Then  comes 
the  next  sentence :  '  Of  all  the  monarchs,  indeed,  since  the  revolu- 
tion, the  successor  of  George  the  Third  will  have  the  finest  oppor- 
tunity of  becoming  nobly  popular.'  This  is  more  equivocal,  and  it 
will  be  for  you,  gentlemen  of  the  jury,  to  determine  what  is  the  fair 
import  of  the  words  employed.  Formerly  it  was  the  practice  to  say, 
that  words  were  to  be  taken  in  the  more  lenient  sense  ;  but  that 
doctrine  is  now  exploded  ;  they  are  not  to  be  taken  in  the  more  lenient 
or  more  *severe  sense,  but  in  the  sense  which  fairly  be- 
longs to  them,  and  which  they  were  intended  to  convey.  [  *178  ] 
Now,  do  these  words  mean,  that  his  majesty  is  actuated 
by  improper  motives  ?  or  that  his  successor  may  render  himself  nobly 


178  CRIMINAL  DIVIfelON : 

popular  by  taking  a  more  lively  interest  in  the  welfare  of  his  subects  ? 
Such  sentiments,  as  it  would  be  most  mischievous,  so  it  would  be 
most  criminal  to  propagate.  But  if  the  passage  only  meant  that  his 
majesty,  during  his  reign,  or  any  length  of  time,  may  have  taken  an 
imperfect  view  of  the  interest  of  the  country,  either  respecting  our 
foreign  relations,  or  the  system  of  our  internal  policy ;  if  it  imputes 
nothing  but  honest  error,  without  moral  blame,  I  am  not  prepared  to 
say  that  it  is  a  libel. 

The  extract  read  at  the  request  of  the  defendants  does  seem  to 
me  too  remote,  in  point  of  situation,  in  the  newspaper,  to  have  any 
material  bearing  on  the  paragraph  in  question.  If  it  had  formed  a 
part  of  the  same  discussion,  it  must  certainly  have  tended  strongly 
to  show  the  innocence  of  the  whole.  It  speaks  of  that  which  every 
body  in  his  majesty's  dominions  knows — his  majesty's  solicitude  for 
the  happiness  of  his  people  ;  and  it  expresses  a  respectful  regard  for 
Lis  paternal  virtues.  What  connection  it  has  with  the  passage  set 
out  in  the  information,  it  is  for  you  to  determine.  Tak- 
[  *179  ]  ing  that  passage  substantively,  and  by  itself,  it  is  a 'mat- 
ter 1  think,  somewhat  doubtful,  whether  the  writer  meant 
to  calumniate  the  person  and  character  of  our  august  sovereign. 
If  you  are  satisfied  that  this  was  his  intention,  by  the  application  of 
your  understandings  honestly  and  faiily  to  the  words  complained  of, 
and  you  think  they  cannot  properly  be  interpreted  by  the  extract 
which  has  been  read  from  the  same  paper,  you  will  find  the  defend- 
ants guilty.  But  if,  looking  at  the  obnoxious  paragraph  by  itself, 
you  are  persuaded  that  it  betrays  no  such  intention  ;  or  if,  feelino- 
yourselves  warranted  to  import  into  your  consideration  of  it  a  pass- 
age connected  with  the  subject,  though  considerably  distant  in  place, 
and  disjoined  by  other  matter,  you  infer  from  that  connection  that 
this  was  written  without  any  purpose  to  calumniate  the  personal 
government  of  his  majesty,  and  render  it  odious  to  his  people,  you 
will  find  the  defendant  not  guilty.  The  question  of  intention  is  for 
your  consideration.  You  will  not  distort  the  words,  but  f^ive  them 
their  application  and  meaning,  as  they  impress  your  minds.  What 
appears  to  me  most  material  is  the  substantive  paragraph  itself:  and 
if  you  consider  it  as  meant  to  represent  that  the  reign  of  his  ma- 


LIBELS  AGAINST  THE  KING.  179 

jesty  is  the  only  thing  interposed  between  the  subjects  of  this  country 
and  the  possession  of  great  blessings,  which  are  likely  to 
be  enjoyed  in  the  reign  of  his   successor,  and  thus  "to     [  *180  ] 
render  his  majesty's  administration   of  his  goverumenfc 
odicus,  it  is  a  calumnious  paragraph,  and  to  be  deaU  with  as  a  libeU 
If  on  the  contrary,  you  do  not  see  that  it  means  distinctly,  accord- 
ing to  your  reasoning,  to  impute  any  purposed  mal-administra^ion  to 
lis  majesty  or  those  acting  under  him,  but  may  be  fairly  construed 
an  express-on  of  regret  that  an  erroneous  view  has  been  taken  of 
public  affairs,  I  am   not  prepared  to  say  that  it  is  a  libel.     There 
have  been  errors  in  the  administration  of  the  most  enlightened  men. 
I  will  take  the  instance  of  a  man,  who  for  a  time  administered  the 
concerns  of  this  country  with  great  ability,  although  he  gained  his 
elevation  with  great  crime,  I  mean  Oliver  Cromwell.     We  are  at 
this  moment  suffering  from  a  most  erroneous  principle  of  his  gov- 
ernment, in  turning  the  balance  of  power  against  the  Spanish  mon- 
archy, in  favour  of  the  House  of  Bourbon.     He  thereby  laid  the 
foundation  of  that  ascendency,  which,  unfortunately  for  all  mankind, 
France  has  since  obtained  in  the  affairs  of  Europe.     The  greatest 
monarchs  who  have  ever  reigned— monarchs  who  have  felt  the  most 
•    anxious  solicitude  for  the  welfare   of  the  country,  and  who  have  m 
some  respects  been  the  authors  of  the  highest  blessings  to  their  sub- 
jects, have  erred;  but  could  a  simple  expression  of  regret  for  any 
error  they  had  committed,  or  an  earnest  wish  to  see  that 
error  corrected,  be  considered  *as  disparaging  them,  or     [  *181  ] 
tending  to  endanger  their  government  ?    Gentlemen,  with 
these  directions,  the  whole  subject  is  for  your  consideration.     Ap- 
ply your  minds  candidly  and  uprightly  to  the  meaning  of  the  pas- 
sage in  question  :  distort  no  part  of  it  for  one  purpose  or  another,  and 
let°yo"r  verdict  be  the   result   of  your  fair   and  deliberate  judg- 
ment (Z)."  ,,1x1- 

In  the  case  of  the  King  v.  Barvey  (m),  it  was  held  to  be  an  m- 
dictable  offence  to  publish  falsely  of  the  king,  or  of  any  other  person, 
that  he  laboured  under  mental  derangement.  The  libel  was  as  fol- 
lows-—"  Attached  as  we  sincerely  and  lawfully  are  to  every  mter- 
est  connected  with  the  sovereign,  or  any  of  his  illustrious  relatives, 

(Z)  The  defendant  was  acquitted.  (m)  2  B.  and  C.  257. 

Vol.  H.  79 


181  CRIMINAL  DIVISION. 

ifc  is  -with  the  deepest  concern  "wo  have  to  state,  that  the  malady 
under  which  his  majesty  labours  is  of  an  alarming  description.  It 
is  from  authority  we  speak."  The  libel  then  stated  several  facts 
relating  to  the  king's  illness.  At  the  trial,  before  Abbott,  C.  J.  at 
the  London  Sittings  after  last  term,  the  publication  of  the  libel  was 
proved  in  the  usual  manner,  and  it  was  admitted,  by  the  counsel  for 
the  defendants,  that  the  libel  imported  that  the  king  laboured  under 

insanity  ;  and  that  that  assertion  was  untrue  ;  but  it  was 
[  182  ]     urged  to  the  jury  that  the  defendants  *believed  the  fact 

to  be  true,  and  that  they  were  warranted  in  so  doing,  by 
rumours  which  had  been  very  prevalent  on  the  subject.  The  Lord 
Chief  justice,  in  his  address  to  the  jury,  after  stating  the  import  of 
the  publication,  proceeded  as  follows  : — "  To  assert  falsely  of  his 
majesty,  or  of  any  other  person,  that  he  labours  under  the  affliction 
of  mental  derangement,  is  a  criminal  act.  It  is  an  offence  of  a  more 
aggravated  nature  to  make  such  an  assertion  concerning  his  majesty, 
by  reason  of  the  greater  mischief  that  may  thence  arise.  It  is  distinctly 
admitted  by  the  counsel  for  the  defendants,  that  the  statement  in 
the  libel  was  false,  in  fact,  although  they  assert  that  rumors  to  the 
same  effect  had  been  previously  circulated  in  other  newspapers. 
Here  the  writer  of  this  article  does  not  seem  to  found  himself  upon 
existing  rumours,  but  purports  to  speak  from  authority,  and  inasmuch 
as  it  is  now  admitted  that  the  fact  did  not  exist,  there  could  be  no 
authority  for  the  statement.  In  my  opinion,  the  publication  is  a  libel 
calculated  to  vilify  and  scandalize  his  majesty,  and  bring  him  into 
contempt  among  his  subjects.  But  you  have  aright  to  exercise  your 
own  judgment  upon  the  publication,  and  I  invite  you  so  to  do.  The 
jury  found  the  defendants  guilty  (n). 

(n)  After  the  jury  had  retired  about  two  hours,  they  returned  into  court,  and 
the  foreman  said  that  the  jury  wished  to  have  the  opinion  of  the  Lord  Chief  Jus- 
tice, whether  it  was  or  not  necessary  that  there  should  be  a  malicious  intention 
to  constitute  a  libel.  To  this  question  the  Lord  Chief  Justice  returned  the  fol- 
lowing answer. — "  The  man  who  publishes  slanderous  matter,  calculated  to  de- 
fame and  vilify  another,  must  be  presumed  to  have  intended  to  do  that  which  the 
publication  is  calculated  to  bring  about,  unless  he  can  show  the  contrary,  and  it 
is  for  him  to  show  the  contrary.  There  may  indeed  be  innocent  publications  of 
that  which,  in  its  own  nature,  is  injurious  to  another,  as,  for  instance,  the  deliv- 
ery of  a  book,  containing  libellous  matter,  to  a  magistrate;  but  the  general  rule 
is,  that  the  person  must  be  taken  to  have  intended  to  do  that  which  his  act  i» 


LIBELS  AGAINST  THE  KING.  183 

*Next  as  to  libels  on  the  government :  it  is  the  undoubt-     [  *183  ] 
eel  right  of  every  member  of  the  community  *to  publish     [  *184:  ] 
his  own  opinions  on  all  subjects  of  public  and  common  in- 
terest, and  so  long  as  he  exercises  this  inestimable  privilege  candidly? 
honestly,  and  sincerely,  with  a  view  to  benefit  society,  he  is  not  amen- 
able as  a  criminal.     This  is  the  plain  line  of  demarcation  ;  when  this 
boundary  is  overstepped,  and  the  license  is  abused  either  for  the  wan- 
ton gratification  of  private  malice,  in  aiming  a  stab  at  the  private 
character  of  a  minister,  under  colour  and  pretence  of  discussing  his 
pubhc  conduct,  or  where  either  public  men  or  their  measures  are  de- 
nounced in  terms  of  obloquy  and  contumely,  under  pretence  of  ex- 
posing defects  and  correcting  errors,  but  in  reality,  for  the  purpose 
of  obstructing  and  impeding  the  administration  of  public  affairs,  or  of 
alienating  the  affections  of  the  people  from  the  king  and  his  govern- 
ment, and  by  weakening  the  ties  of  allegiance  and  loyalty,  to  pave 
the  way  for  sudden  and  violent  changes,  sedition,  or  even  revolution ; 
in  these  and  similar  instances,  where  pubhc  mischief  is  the  object 
of  the  act,  and  the  means  used  are  calculated  to  effect  that  object, 
the  publication  is  noxious   and  injurious  to  society,  and  is  therefore 
criminal.     It  has  justly  been  observed  that  the  life  of  government  is 
reputation,  an  administration  destitute  of  the  support  and  encour- 
agement to  which  the  good  opinion  of  the  people  is  essen- 
tial, must  necessarily  be  timid  and  indecisive,  *and  conse-     [  *185  ] 
quently  weak  and  ineffectual. 

It  has  been  asserted  by  high  authority  (o),  that  "  every  freeman 

calculated  to  effect."  The  jury  again  retired  for  about  three  hours,  and  then  re- 
turned a  verdict  of  guiltv,  but  recommended  the  defendant  to  mercy.  A  motion 
was  afterwards  made  for  a  new  trial,  upon  the  ground  of  a  supposed  misdirec- 
tion on  the  part  of  the  Chief  Justice,  but  the  court  were  of  opinion,  that  his 
direction  was  right,  that  the  assertion  that  the  fact  was  communicated  from  au- 
thority  where  it°turned  out  to  be  false,  was  a  false  statement,  and  that  such  a  com- 
munication being  in  itself  mischievous  and  injurious,  malice  must  necessarily  be 
inferred,  since  a  party  must,  in  point  of  law,  be  considered  to  have  intended  that 
which  is  the  natural  consequence  of  what  he  does.  See  R.  v.  Creevy.  1  M.  and 
S  273  supra.  R.  v.  Farrington,  2  Russ.  1675.  R.  v.  Mazagora,  Bayley  oa 
Bills  443.  Russ.  and  Ry.  C.  C.  L.  291.  See  further,  as  to  contempts  against 
the  king,  Cro.  J.  38,  and  the  case  of  A.  Scott,  for  publishing  false  news.  O. 
B.  June  Sess.  1788.  Haw.  P.  C.  c.  23.  s.  4. 
(o)  4  Bl.  Comm.  151. 


185  CRIMINAL  DIVISION. 

has  an  undoubted  right  to  lay  what  he  pleases  before  the  public — to 
forbid  this  is  to  destroy  the  freedom  of  the  press  ;  but  if  he  pub- 
lishes what  is  improper,  mischievous,  or  illegal,  he  must  take  the 
consequence  of  his  own  temerity." 

On  the  trial  of  James  Perry  and  another  (p),  on  an  information 
for  a  libel,  the  Attorney-General,  in  his  opening  to  the  jury,  observ- 
ed, "  From  the  bench  you  will  hear  laid  down,  from  the  most  re- 
spectable authority,  the  law  which  you  are  to  apply  to  those  facts. 
The  light  of  every  man  to  represent  what  he  may  conceive  to  be  an 
abuse  or  grievance  in  the  gofernment  of  the  country,  if  his  intention 
in  so  doing  be  honest,  and  the  statement  made  upon  fair  and  open 
grounds,  can  never  for  a  moment  be  questioned.  I  shall  never  think 
it  my  duty  to  prosecute  any  person  for  writing,  printing,  and  publish- 
ing, fair  and  candid  opinions  on  the  system  of  the  government  and 
constitution  of  this  country,  nor  for  pointing  out  what 
[  *186  ]  *he  may  honestly  conceive  to  be  grievances,  nor  for  pro- 
posing legal  means  of  redress." 

It  would  exceed  the  proposed  limits  of  this  treatise,  to  cite  cases 
in  detail  under  this  division ;  every  case,  indeed,  falling  within  it,  is 
too  intimately  involved  in  its  particular  circumstances  to  admit  of 
any  abstract  rules  less  general  than  the  elements  which  have  been 
laid  down  as  essential  to  such  an  offence,  the  plain  intrinsic  tenden- 
cy {q)  of  the  communication  to  produce  public  disorder,  and  the 
malicious  intention  of  its  author  (r). 

(p)  Before   Ld.  Kenyon,  1793.     See   Ridgway's  Collection,  &c.  2  vol.  371. 

(y)  See  R.  v.  Beare,  VI  Mod.  221.  Ld.  Ray.  418.  Dig.  L.  L.  19,  121.  R.  v. 
Bedford,  2  Str.  789.  Rex  v.  Owen,  K.  B.  MSS.  Dig.  L.  L.  67.  R.  v.  Law- 
rence, 12.  Mod.  311.     R.  V.  Bliss,  Clerk,  K.  B.  MSS.  5  G.  1.  Dig.  L.  L.  122. 

(r)  A  person  delivered  a  ticket  up  to  the  minister  after  a  sermon,  wheiein  he 
desired  him  to  take  notice,  that  offences  passed  now  without  control  from  the 
civil  magistrate,  and  to  quicken  the  civil  magistrate  to  do  his  duty,  &c.  This 
was  held  to  be  a  libel,  though  no  magistrates  in  particular  were  mentioned,  and 
though  it  was  not  averred  that  the  magistrates  suffered  these  vices  knowingly. 
And  the  ground  of  the  conviction  has  been  stated  lo  be,  that  general  mispresen- 
lations  of  the  government  or  state  of  the  nation,  or  mutinous  hints,  tend  to  ex- 
cite discontent  and  sedition  in  the  people,  and  that  the  generality  of  the  reflec- 
tion made  it  the  more  dangerous,  since  it  had  a  bad  effect  on  the  whole  frame 
of  government.     Sid.  219.  Rol.  773.  Bac.  Ab.  tit.  Libel,  450. 


CONTEMPTS,  ETC.  186 

•Next,  as  to  publications  against  the  adminisiration  of 
justice.  L  J 

Contempts  against  the  King's  Judges,  and  scandalous 
reflections  on  their  proceedings,  fall  within  the  same  consideration 

Lawrence   was  convicted  upon  an  infornnation  charging  him  with 
having  sent  a  letter  to   Sir  John   Pigot,  desiring  him  to   *moderate     [  *187  ] 
his  zeal,  fur  that  the  king  (meaning  King  James  II.)  would  soon  be 
restored  ;  and  that  for  further  satisfaction  herein,  he  would  soon  hear  that  many 
lords  would  repair  to  him  to  France,  what  to  do  he  might  guess.     The  defend- 
ant was  fined  fortv  marks.   12  Mod.  811.  Dig.  L.  L.  121. 

John  Tutchin  was  convicted  upon  an  information  for  publishing  several  libels 
containing  the  following  paragraphs  : — 

"  If  we  may  judge  by  our  national  miscarriages,  perhaps  no  nation  has  felt  the 

influence  of  French   gold  more   than  England  ;  and  worthy  it  is  of  our  greatest 

lamentation,  that  our  dear  country  should  be  thus  weakened  by  men  of  mercenary 

principles,  when  countries,  inferior  to  us  in  strength  and  riches,  are  secured  from 

attempts  of  this  nature  only  by  the  fidelity  of  their  people.     What  is  the  reason 

that  French  gold  has  not  affected  Holland  as  well  as  England,  but  that  their  mm- 

istry  is  such  as  is  entirely  in  the  interest  of  their  country,  and  altogether  mcorrupt- 

ible.     They  prefer  men  that  are  knowing  in  their  posts,  and  are  active  in  bnsmess, 

when  in  England  we  find  out  offices  for  men,  and  not  men  for  offices.     By  this  and 

by  preferring  men  by  interest  and  favour,  have  the  excise,  the  customs,  and  other 

branches  oflhe  revenue,  intolerably  sunk,  and  by  this  means  has  the    navy  of 

England,  our  chief  support,  been  hiiherto  perfectly  bewitched.     And  can  Lewis 

spend    his   money   better,  than  in  getting   men  into  office  in  England,  who  are 

either  false  or  ignorant  in  the  business,  or  who  are  his  friends." 

Ld.  Holt,  C.  J.  in  summing  up  to  the  juty,  observed,  "  To  say  that  corrupt 
officers  aje  appointed  to  administer  affiairs  is  certainly  a  reflection  on  the  govern- 
ment. If  p  Tsons  should  not  be  called  to  account  for  possessing  the  people  with 
an  ill  opinion  of  the  government,  no  government  can  subsist ;  nothing  can  be 
worse  to  any  government,  than  to  endeavour  to  procure  animosities  as  to  the 
management  of  it  ,  this  has  always  been  looked  upon  as  a  crime,  and 
no  go'vernment  can  be  *safe  unless  it  be  punished.  Now  you  are  to  [  *188  ] 
consider,  whether  these  words  I  have  read  to  you,  do  not  tend  to  be- 
get an  ill  opinion  of  the  administration  of  the  government."     5  St.  Tr.  532.  A. 

D.  .704. 

John  Clarke  was  f  mnd  guilty  upon  an  information,  charging  him  with  hav- 
ing printed  and  published  a  malici.ms  libel,  intituled  "  Mist's  Weekly  Journal," 
containing  false,  malicious,  and  seditious  reflections^on  his  late  and  present  ma- 
jesty, by  drawing  odious  parallels,  and  thereby  miliciously  and  f.ilsely  insinu- 
ating our  oovern^ment  to  be  tyrannical,  and  the  ministry  corrupt  and  abominable. 
9.  St.  Tr.  273.  A.  D.  1729. 

Richard  Franklin  was  found  guilty  upon  an  information,  charging  him  with 
having  printed  and  published  a  malicious  libel,  intituled  "  No.  235,  The  Coun- 


188  CRIMINAL  DIVISION. 

with  the  last  mentioned  class  of  offences,  since  nothing  tends  more 
to  disturb  public  order  than  to  infuse  suspicions  concerning  the  ad- 
ministration of  justice. 

try  Journal,  or  the  Craftsman,"  containing  an  extract  from  a  private  letter  from 
the  Ilagae,  with  intent  (inter  aha)  to  scandalize  and  vilify  the  administration  of 
his  majesty's  government  of  this  kingdom,  and  his  principal  officers  and  minis- 
ters of  slate  as  persons  of  no  integrity  and  ability,  and  as  enemies  to  the  public 
good  of  this  kingdom. 

The  information  stated,  "  That  a  treaty  of  peace  having  been  concluded  be- 
tween his  Majesty  George  the  Second  and  the  Kings  of  France,  Spain,  &c. 
and  that  the  defendant  well  knowing  the  premises,  &c.  and  contriving  to  dis- 
turb the  happy  state  of  the  public  peace  and  the  tranquility  of  the  kingdom,  &c. 
and  to  bring  his  present  majesty's  treaty  of  peace  into  contempt  and  disgrace, 
and  also  to  detract,  scandalize,  traduce,  and  vilify  the  administration  of  his  pre- 
sent majesty's  government  of  the  kingdom,  and  his  principal  officers  and  minis- 
ters of  state,  and  to  represent  them  as  persons  of  no  integrity  or  ability,  and  as 
enemies  of  the  public  good  of  the  kingdom,  &c.  The  information  then  pro- 
ceeded to  the  publication  of  the  libel,  and  set  out  the  libellous  matter,  which 
was  to  the  effect  of  the  above  allegations. 

The  defendant's  counsel  were  Mr.  Fazakerley  and  Mr  Bootle. 
[  *189  ]  *After  the  evidence  had  concluded  on  the  part  of  the  crown,  Mr. 
Fazakerley  offered  to  prove  some  of  the  contents  of  the  libel  to  be 
true.  He  was  immediately  interrupted  by  Lord  Raymond,  Lord  C.  J. — "As 
for  your  saying  that  you  can  prove  what  is  charged  on  the  defendant  to  be  true, 
it  is  my  opinion  that  it  is  not  material  whether  the  facts  charged  in  a  libel  be 
true  or  false,  if  the  prosecution  be  by  indictment  or  information,  and  that  writ- 
ing and  printing  may  be  libellous,  though  the  scandal  is  not  charged  in  direct 
terms,  but  only  ironically."  His  Lordship  added,  "  even  a  private  man's  char- 
acter is  not  to  be  scandalized,  either  directly  or  indirectly,  because  there  are 
remedies  appointed  by  law,  in  case  he  has  injured  any  person  without  malic- 
iously scandalizing  him  in  his  character.  And  much  less  is  a  magistrate,  min- 
ister of  state,  or  other  public  person's  character  to  be  stained,  either  directly  or 
indirectly.  And  the  law  reckons  it  a  greater  offence,  when  the  libel  is  pointed 
at  persons  in  a  public  capacity,  as  it  is  a  reproach  to  the  government  to  have 
corrupt  magistrates,  substituted  by  his  majesty,  and  tends  to  sow  sedition  and 
disturb  the  peace  of  the  kingdom.  Therefore,  I  shall  not  here  allow  of  any 
evidence  to  prove  that  the  matters  charged  in  this  libel  are  true,  for  I  am  only 
abiding  by  what  had  been  formerly  dune  in  other  cases  of  the  like  nature." 

The  observations  of  Sir  Pliilip  Yorke,  Attorney-General,  on  the  part 
of  the  prosecution,  seems  to  have  been  afterwards  adopted  by  the  court.  He 
observes,  "  There  is  another  thing  mentioned,  which  is,  that  if  this  Hague  letter 
was  construed  a  libel,  it  would  tend  to  the  utter  destruction  of  the  liberty  of  the 
press.     My  lord,  I  am  really  at  a  loss  to  know  what  sort  of  liberty  they  mean. 


CONTEMPTS,  ETC.  189 

Offenees  of  this  nature   may  consist  either  in  the  more  gross  vio- 
htion  of  decency,  by  making  use  of  contumelious  and  insolent  lan- 

I  hope  they  do  not  mean  a  licentious  and  unbounded  liberty  to  libel  and  scanda- 
lize his  majesty  or  his  principal  officers  and  ministers  of  state,  or  his  magistrates, 
or  even  any  of  the  meanest  of  his  subjects,  whenever  they  think  fit.  Gentle- 
men, I  would  have  you  to  know  tiiat  even  the  prerogative  of  the 
king  is  founded  upon  law,  and  limited  by  it,  *and  so  are  all  things  [  *190  ] 
relating  to  his  subjects,  and  it  cannot  he  supposed  that  a  printer  only 
is  exempted,  and  at  liberty  to  use  his  press  for  what  purposes  he  pleases.  If  he 
is,  I  desire  that  the  defendant's  counsel  would  point  out  that  law.  No,  the  law 
is  not  so  absurd  as  to  allow  such  a  liberty  of  the  press.  The  liberty 
meant  is  to  be  understood  of  a  legal  one.  He  may  lawfully  print  and 
publish  what  belongs  to  his  own  trade,  but  he  is  not  to  publish  anything 
reflecting  on  the  character  and  reputation  and  administration  of  his 
majesty  or  his  ministiy  or  his  ministers,  nor  yet  to  stain  the  char- 
acter or  reputation  of  any  of  his  subjects.  For,  as  I  said  before,  to  scandalize 
and  libel  people  is  no  part  of  his  trade  ;  so  I  say  it  is  only  that  liberty  of  the 
press  which  he  is  to  use  that  is  regulated  by  law  and  subjected  to  it,  and  if  he 
breaks  that  law  and  exceeds  that  liberty  of  the  press,  he  is  to  be  punished 
for  it,  as  well  as  for  breaking  other  laws  or  liberties.  And,  gentlemen,  though 
it  has  been  insinuated  to  you,  from  the  other  side,  that  the  making  such 
things  a  libel  came  from  the  Star  Chamber,  yet  I  must  tell  you,  thai  the  print- 
mg  such  defamatory  expressions  or  slanderous  news  was  deemed  a  libel,  and 
pnnished  accordingly,  long  before  the  Star  Chamber.  It  is  a  law  made  in  1275, 
in  the  third  of  King  Edward  the  First  inlilled  '  An  Act  that  none  shall  report 
slanderous  news  whereby  discord  shall  arise,'  &c.  &c.  So,  gentlemen,  you  see 
that  this  law  of  libel  is  not  a  new  law,  or  one  that  came  from  the  Star  Chamber, 
but  one  that  has  been  almost  of  five  hundred  years  standing  ;  therefore  I  hope 
you  will  not  suffer  yourselves  to  be  amused  by  such  things.  The  Court  of  Star 
Chamber,  punished  without  juries,  but  though  juries  were  taken  away,  yet  the 
law  remained  the  same  as  to  libels  and  crimes.  So  I  hope  it  appears  to  you  to 
be  very  plain,  that  the  liberty  of  the  press  is  limited  and  governed  by  law,  and 
that  the  law  sets  limits  both  to  the  king  and  his  subjects." 

The  defendant,  after  a  charge  from  the  Chief  Justice,  who  admitted 
the  full  force  and  propriety  of  the   Attorney-Oeneral's  *address,  was     [  *191  ] 
found  guilty.     The  term  following,  he  was  sentenced  to  pay  a  fine 
of  i[^800,  to  be  imprisoned  for  one  year,  and  to  find  security  for  his  good  beha- 
viour for  seven  years,  &c.     No  arrest  of  judgment  was  ever  moved  for,  or  writ 
of  eiror  brought  upon  the  record.    Slate  Trials,  vol.  9,  p.  255. 

The  King  v.  Home. — This  was  an  information  filed  against  the  defendant  by 
his  majesty's  Attorney-General  on  behalf  of  his  majesty,  for  writing,  printing, 
and  publishing  two  libels. 

The  first  count  of  the  information  stated,  that  the  said  John  Home  being  a 
wicked,  malicious,  seditious,  and  ill-disposed  person,  and  being  greatly  disaffect- 


191  CRIMINAL  DIVISION. 

guage  in  the  face  of  the  court,  or  in  the  publishing  of  reflections  on 

the  purity  of  its  proceedings  tending  to  obstruct  ihe  course  of  justice. 

Generally,  any  contemptuous  or  contumelious  words,  when  spoken 

ed  to  our  said  present  sovereign  lord  the  king,  and  to  his  administration  of  the 
government  of  this  kingdom,  and  the  dominions  thereunto  belonging,  and  wick- 
edly, maliciously,  and  seditiously  intendmg,  devising,  and  contriving  to  stir  up 
and  excite  discontents  and  seditions,  among  his  majesty's  subjects,  and  to  alien- 
ate and  withdraw  the  affection,  fidulity,  and  allegiance  of  his  said  majesty's 
subjects  from  his  said  majesty,  and  to  insinuate  and  cause  it  to  be  believed,  that 
divers  of  his  said  majesty's  innocent  and  deserving  subjects  had  been  inhuman- 
ly murdered  by  his  said  majesty's  troops  in  the  province,  colony  or  plantation 
of  the  Massachusetts  Bay  in  New  England,  in  America,  belonging  to  the 
crown  of  Great  Britain,  and  unlawfully  and  wickedly  to  seduce  and  encourage 
his  said  majesty's  subjects  in  the  said  piovince,  colony  or  plantation,  to  resist 
and  oppose  his  majesty's  government,  on  the  8ih  day  of  June,  in  the  15lh  year 
of  the  reign,  &c.,  with  force  and  arms,  at  London  aforesaid,  in  the  parish  of  St. 
Mary  Le-Bow,  in  the  ward  of  Cheap,  wickedly,  maliciously,  and  seditiously  did 
write  and  publish  and  cause  and  procure  to  be  written,  and  published,  a  certain 
false,  wicked,  malicious,  scandalous,  and  seditious  libel,  of  and  concerning  his  said 
majesty's  government  and  the  employment  of  his  troops  according  to  the  tenor 
and  effect  following: — "King's  Arms  Tavern,  Cornhill,  June  Tih, 
[  *192  ]  1775.  At  a  special  meeting,  this  day,  of  several  members  of  *ilie  Con- 
stitutional Society,  during  an  adjournment,  a  gentleman  proposed  that 
a  subscription  should  be  immediately  entered  into,  (by  such  of  the  members  present 
who  might  approve  the  purpose,  for  laising  the  sum  of  jE  100  to  be  applied  to  the  re- 
lief, of  the  widows,  orphans,  and  aged  parentsof  our  beloved  American  fellow  sub- 
ject who  faithful  to  the  character  of  Englishmen,  preferring  death  to  slavery,  were 
for  that  reason  only  inhumanly  murdered  by  the  king's  (meaning  his  said  maj- 
esty's) troops,  at  or  near  Lexington  and  Concord,  in  the  province  of  Massachu- 
setts, (meaning  the  said  province,  colony,  or  plantation  of  Massachusetts 
Bay  in  Nev;  England,  in  America,)  on  the  19ih  of  last  April,  which  sum  being 
immediately  collected,  it  was  thereupon  resolved  that  Mr.  Home  (meaning  him- 
self the  said  John  Home,)  do  pay  to-morrow  into  the  hands  of  Messieurs 
Brownes  and  Collison,  on  the  account  of  Dr.  Franklin,  the  said  sum  of  jCIOO, 
and  that  Dr.  Franklin  be  requested  to  apply  the  same  to  the  above  mentioned 
purpose.  John  Home  (meaning  himself  the  said  John  Home,)  in  contempt  of 
our  said  lord  the  king,  in  open  violation  of  the  laws  of  this  kingdom,  to  the 
evil  and  pernicious  example  of  all  others  in  the  like  case  offending,  and  also 
against  the  peace  of  our  said  present  sovereign  lord  the  king,  his  crown  and 
dignity." 

There  were  other  counts  in  the  information,  charging  the  said  John  Home 
with  causing  the  same  libel  to  be  printed  in  the  London  Packet,  or  New  Lloyd's 
Evening  Po.st,  and  the  Morning  Chronicle,  or  London  Advertiser. 


CONTEMPTS,  ETC.  192 

to  the  judges  of  any  courts,  in  the  execution  of  their 

office,  are  indictable  (s).     As  if  one  give  the  lie  (0   to     [  *195  ] 

The  defendant  pleaded — Not  guilty. 

The  information  was  tried  at  the  Sittings  in  London  after  Trinity  Term,  1777, 
before  Lord  Mansfield,  by  a  special  jury,  and  the  defendant  found  guilty  of  all 
the  offences  charged  in  the  information. 

The  Courts  of  K.  B.  afterwards  passed  the  following  sentence  upon  Mr. 
Home  : — "  To  pay  a  fine  of  £200,  to  be  imprisoned  one  year,  and  to  j,nve  se- 
curities for  his  good  behaviour  for  three  years."  Afterwards  the  defendant 
brought  a  writ  of  *error  in  the  House  of  Lords,  but  the  judgment 
of  the  King's  Bench  was  affirmed.  Cowp.  Rep.  672,  and  11  St.  [  *193  ] 
Tr.  204. ;  see  also  R.  v.  Burdett,  4  B.  and  A.  115,  314. 

The  King  v.  Cobbett. — This  was  an  information  filed  by  the  Attorney-Gene« 
ral  against  the  defendant,  for  a  libel  published  in  the  "  Weekly  Register,"  in 
the  form  of  a  letter  signed  Juverna.  It  was  a  libel  upon  the  administration  of 
the  Irish  government,  and  upon  the  public  character  and  conduct  of  the  Lord 
Lieutenant  and  Lord  Chancellor  of  Ireland  Mr.  Cobbett  was  not  the  author, 
but  merely  the  publisher  of  this  letter.  After  the  libel  had  been  proved,  and 
the  defendant's  counsel  heard,  Lord  Ellenborough,  in  his  address  to  the  jury, 
observed,  "  the  law  of  England  is  a  law  of  liberty  ;  and,  consistently  with  this 
liberty,  we  have  no  imprimatur,  there  is  no  such  preliminary  license  necessary. 
But  if  a  man  publish  a  paper  he  is  exposed  to  penal  consequence,  as  he  is  in  do- 
ing every  other  act,  if  it  tend  to  the  prejudice  of  any  individual.  It  is  no  new 
doctrine,  that  if  a  publication  be  calculated  to  alienate  the  affections  of  the  peo- 
ple, by  bringing  the  government  into  disesteem,  whether  the  expedient  be  by 
ridicule  or  obloquy,  the  person  so  conducting  himself  is  exposed  to  the  inflic* 
tions  of  the  law.  It  is  a  crime.  It  has  ever  been  considered  as  a  crime,  whe- 
ther wrapt  in  one  form  or  another.  The  case  of  the  King  v.  Tutchin,  decided 
in  the  time  of  Lord  Chief  Justice  Holt,  has  removed  all  ambiguity  from  this 
question;  and  although  at  the  period  when  that  case  was  decided,  great  political 
conlentions  existed,  the  matter  was  not  again  brought  before  the  judges  of  the 
court  by  any  application  for  a  new  trial."  Again,  his  lordship  says,  "  No  maa 
has  a  right  to  render  the  person  or  abilities  of  another  ridiculous,  not  only  ia 
publications,  but  if  the  peace  and  welfare  of  individuals  or  of  society  be  inter- 
rupted, or  even  exposed  by  types  and  figures,  the  act  by  the  law  of  England  is 
a  libel."  And  again,  "It  has  been  observed,  that  it  is  the  right  of  the  British 
subject  to  exhibit  the  folly  or  imbecility  of  the  members  of  the  government. 
But  gentlemen,  we  must  confine  ourselves  within  limits.  If,  in  so  doing,  indivi- 
dual feelings  are  violated,  there  the  line  of  interdiction  begins,  and  the  offence 
becomes  the  subject  of  penal  visitation."  The  defendant  was  found  guilty,  but 
not  called  up  for  judgment,  having  redeemed  himself  by  giving  up  the  author 
of  the  libel,  who  was  immediately  prosecuted  and  convicted.  E.  T.  K.  B. 
1804.     The  King  v.  Johnson,  7  East.  65. 

(s)  1  Sid.  144.     Str.  420.  2  Rol.  Ab.  78.     In  The  King  t;.  Revell,  1  Str.- 

VoL.  II,  80 


194  CRIMINAL  DIVISION. 

a  juolge  of  a  court  leet,  in  the  face  of  tlie  court ;  or,  being  admon- 
isliecl  bj  him  to  pull  off  his  hat,  (?i),  say,  "  I  do  not  valae  ^liat  you 
can  do;"  or  tell  him  in  the  face  of  the  court,  tbai:  he  is  for- 
sworn (x),  or  call  him  a  fool  (?/),  or  say,  "If  I  cannot  havo 
justice  here,  I  will  have  it  elsewhere  (s)." 

When  reflecting  words  are  spoken  of  the  judges  of  the  superior 
courts,  at  Westminster,  the  speaker  is  indictable  both  at  common 
law  and  under  the  statutes  of  Scandalum  Magnatum,  whether  the 
words  relate  to  their  office  or  not. 

With  respect  to  inferior  magistrates,  such   as  justices  of   the 
peace,  it  seems  to  be  clear,  on  the  authorities,  that  abusive  and  de- 
famatory words  spoken  of  them  in  their  absence,  and 
[  *196  ]     which  do  not  relate  to  the  execution  of  their  offi  :e,  *are 
not  indictable  (a).     And  even  although  the  words  affect 
them  generally  in  their  office,  as  where  they  impute  want  of  ability^ 
capacity,  or  integrity,  it  seems  that  they  are  not  indictable.     For 
though  the  contrary  seems  to  have  been  held  in  Darhy''s 
[  *197  ]     case  (6),  *yet  that   decision  has   been  materially  im- 

420,  it  was  held  that  the  words  "  you  are  a  ro?ue  and  a  liar,"  spoken  to  a 
justice  of  the  peace  in  the  execution  of  his  office,  were  indictable,  and  that 
such  words  spoken  of  him  in  his  absence  would  also  have  been  indictable. 
See  also  R  v.  Darby,  3  Mod.  139. 

Other  cases  may  be  referred  to,  in  which  the  same  doctrine  has  been  repeated 
in  the  judgments  of  the  court  upon  defendants  convicted  of  public  libels.  In 
the  case  of  The  King  v.  Cobbett,  K.  B.  1810,  for  a  libel,  tending  to  excite  dis- 
affection in  the  army,  and  the  cases  of  The  King  v.  Fisher,  The  King  v.  Lovel, 
The  King  v.  Gale  Jones,  and  The  King  v.  Drankard,  the  same  general  princi- 
ples were  expounded  and  applied.  See  also  The  King  v.  Burdctt,  4  B.  and 
A.  115,314. 

(0  Ow.  113.     Mo.  470.     Cro.  Eliz,  581. 

(u)  Ray.  78.     1  Keb.  451,  465. 

(ar)  2  Rol.  Ab.  78.  (y)  Cro.  Eliz.  78. 

(z)   1  Sid.  144.     Keb.  508. 

(a)  See  the  following  note. 

(b)  5  Mod.  139.  (S.  C  Comb.  65.  Carth.  14.)  The  defendant  was  indicted 
for  speaking  scandalous  words  of  Sir  J.  Kearle  :  a  Justice  of  the  Peace,  \\z. 
"  Sir  John  Kearle  is  a  buffleheaded  fellow  and  doth  not  understand  the  law  ;  he 
is  not  fit  to  talk  with  me  ;  I  have  baffled  him,  and  he  hath  not  done  my  client 
justice."  And  the  court  is  reported  to  have  held,  that  though  the  words  were 
not  actionable,  yet  they  were  indictable  for  the  reason  given  in  the  text.     In 


CONTEMPTS,  ETC.  198 

peached  by  other  authorities.     Indeed  the  reason  there 

given  for  *hokling  such  words  to  be  indictable,  that  it  is     [  *10S  ] 

the  subsequent  case  of  the  Queen  v.  Langley,  Salic.  697,  on  an  indictment  for 
saying  to  the  Mayor  of  Salisbury,  you  are  a  rogue  and  a  rascal  ;  Holt,  C.  J- 
held  "that  the  words  were  not  indictable,  the  mayor  not  being  in  the  execution 
of  his  office  nor  a  patent  officer  ;  and  that  it  did  not  appear  that  the  mayor  was 
a  justice  of  the  peace,  at  least,  not  by  commission  from  the  king  ;  yet  that,  if 
the  words  had  been  written,  ^n  indictment  would  have  lain.  Et  per  tolam 
curiam,  words  that  directly  tend  to  a  breach  of  the  peace,  as  if  one  man  chal- 
lenge another,  are  indictable  ;  and  the  commission  of  oyer  and  terminer  de 
propalationibus  verborum  is  to  be  construed  of  words  against  the  government  or 
Bcandalum  magnatum,  &c. ;  but  f..r  these  petit  offences  which  are  contra  bonos 
mores,  the  law  has  another  provision,  by  requiring  surety  of  the  peace  and 
good  behaviour,  in  default  whereof  the  magistrate  may  commit  him,  when 
spoken  out  of  court;  and  when  in  court  the  magistrate  may  proceed  summarily 
against  him  and  fine  him  for  the  contempt. 

In  the  repoit  of  the  same  case,  6  Mod.  125,  it  is  stated  that  after  great  de- 
liberation they  adjudged  tl  e  words  were  not  indictable,  for  it  is  not  so  much  as 
eaid,  that  he  was  in  the  execution  of  his  office  or  a  justice  of  the  peace.  In- 
deed had  they  been  put  into  writing,  they  would  be  a  libel,  punishable  either  by 
indictment  or  action  ;  but  they  are  but  loose  and  unmanneily  words,  like  those 
spoken  of  an  alderman  of  Hull,  "  when  he  puts  on  his  gown,  Satan  enters  into 
it,"  vhich  were  adjudged  not  indictable  in  Kelynge's  time;  (I  Mod.  35.) 
You  are  a  forsworn  mayor  and  have  broken  your  oath,  not  indictable,  (Stiles, 
251.)  And  binding  him  to  good  behaviour  is  sufficient  to  secure  the  authority 
of  mayors;  hut  th^t  must  be  done  instantly,  according  to  Dr.  Bonham's  case, 
(Stiles,  251,)  and  Holt,  C.  J.  said,  that  words  which  led  directly  to  a  breach  of 
the  peace  may  be  indictable  ;  otherwise  to  encourage  indictments  for  words 
would  make  them  as  uncertain  as  actions  for  words  are. 

Acrain  in  the  case  of  the  Queen  v.  Wrightson,  Salk.  G98,  which  was  an  in- 
dictment for  saving  of  Sir  Rowland  Gvvyn,  a  justice  of  the  peace,  in  discourse, 
concerning  a  warrant  made  by  him  ;  "  Sir  Rowland  is  a  fool,  an  ass,  and  a  cox- 
comb, for°making  such  a  warrant,  and  he  knows  no  more  than  a  stick-oill;" 
the  court  held,  on  demurrer,  that  there  was  a  breach  of  good  manners,  for 
which  he  might  be  bound  to  the  good  behaviour,  yet  there  was  no  indictable 
offijnce.  And  in  this  case,  many  of  the  former  authorities  were  referred  to, 
viz.  2  Ke.b.  494.  Hutt.  131.  1  Cro.  362.  3  Mod.  139.  1  Vent.  169,  and  R. 
V.  Selby,  Mich.  4  Ann.  K.  B.  where  the  defendant  was  indicted  for  the^words, 
"  He  is  not  fit  to  be  a  justice,  for  if  a  man  is  before  him  he  will  give  it^ight  or 
wrong  where  his  affection  is  ;"  and  where  it  was  held  that  the  indictment  lay 
not.  "st  per  Holt,  C.  J.  to  say  a  justice  is  a  fool,  or  an  ass,  or  a  coxcomb,  or  a 
bufflehead,  is  not  indictable  ;  quod  fuit  concess  per  Powell,  and  vid.  2  Rol. 
Rep.  78.     4  Ins.  181.     In  the   report  of  the  case  of  the  Queen  v.  Langley,  2 


199  CRBHNAL  DIVISION. 

[  *199  ]     an  indirect  scandal  against  the  government  to  have  "ap- 
pointed an  ignorant  man  to  be  a  justice  of  the  peace  is 

Ld.  Ray.  1029,  Gould,  J.  is  reported  to  have  said,  that  in  Darby's  case,  2  Mod. 
139.  the  court  held  that  the  words  were  not  indictable,  yet  the  contrary  appears, 
as  well  from  the  report,  3  Mod.  139,  as  from  the  reports  of  the  same  case, 
Comb.  65,  and  Carth.  14  ;  in  the  latter  of  which  it  is  stated  that  the  defendant 
was  fined  100  marks. 

In  the  case  of  the  King  v.  Penny,  1  Ld.  Ray,  153,  (8  and  9  W.  III.)  the  de- 
fendant was  indicted  for  saying  of  Mr.  Martin,  a  justice  of  the  peace,  "I  did 
not  care  if  all  the  Martins  had  been  hanged  five  years  ago,  and  the  justice  is 
now  turned  out  of  the  commission;"  and  the  indictment  was  quashed,  on 
motion,  the  court  observing  that  Mr.  Martin  ought  to  have  brought  his  action. 

In  the  case  of  the  King  «.  Revell,  Str.  420,  where  the  defendant  was  indicted 
for  saying  to  a  justice  of  the  peace  in  the  eiecution  of  his  office,  you  are  a  rogue 
and  a  liar,  it  was  held  that  an  indictment  lay  ;  and  the  court,  in  giving  judg- 
ment, observed  "  the  true  distinction  is,  that  where  the  words  are  spoken  in  the 
presence  of  the  justice  there  he  may  commit  ;  but  when  it  is  behind  his  back, 
the  party  can  be  only  indicted  for  a  breach  of  the  peace."  And  the  court  also 
held,  that  where  the  party  might  be  committed  he  might  also  be  indicted.  But 
in  the  subsequent  case  of  the  King  v.  Pocock,  Str.  11.57,  an  information  was 
moved  for  words  spoken  by  the  defendant  in  a  conversation  about  a  warrant 
which  had  been  granted  by  Mr.  Kent,  a  justice  of  the  peace,  in  which  the  de- 
fendant having  asked  whether  Mr.  Kent  was  a  sworn  justice,  and  having  been 
answered,  "  to  be  sure  he  is  or  else  he  would  not  act,"  replied  "  if  he  is  a 
sworn  justice  he  is  a  rogue  and  a  forsworn  rogue."  Et  per  curiam,  there  ought 
to  be  no  information  ;  it  is  not  the  same  insult  and  contempt  as  if  spoken  to  him 
in  the  execution  c.f  his  oflRce  which  would  make  it  a  matter  indictable. 

In  R.  V.  Weltje,  2  Camp.  C.  142,  the  defendant  was  indicted  for  saying  of  a 
justice  of  the  peace,  in  his  absence,  that  he  was  a  scoundrel  and  a  liar.  Lord 
Ellenborough,  C.  J.  said,  "  the  words  not  having  been  spoken  to  the  justice, 
I  think  they  are  not  indictable.  This  doctrine  is  laid  down  by  Lord  Holt,  in  a 
casein  Salkeld  (R.u.  Wri^htson  2  Salk,  698,  and  in  R.  v.  Pocock,  2  Sir.  1157;) 
the  court  of  King's  Bench  refused  an  information  for  saying  of  a  justice,  in  his 
absence,  he  was  a  forsworn  rogue.  However,  I  will  not  direct  an  acquittal  on 
this  point,  as  it  is  upon  the  record  and  may  be  taken  advantage  of  in  arrest  of 
judgment.  It  will  be  for  the  jury  now  to  say,  whether  the  words  were  spoken 
of  the  prosecutor  as  a  jusiice  of  the  peace,  and  with  intent  to  defame  him  in 
that  capacity  ;  for  if  they  were  not,  the  indictment  is  not  supported,  and  it 
could  iTot  by  possibility  be  a  misdemeanor  to  utter  them,  although  the  prosecu- 
tor's name  may  be  in  the  commission  of  the  peace  for  the  county  of  Middlesex." 
And  the  indictment  must  aver  that  the  words  were  spoken  to  the  jusiice  in  the 
execution  of  his  office  ;  R.  v.  Leafe,  Andr.  226  ;  and  see  Com.  46.  Com.  Dig. 
Ind.  D.  Carth.  14.  R.  v.  Darby,  Bac.  Ab.  tit.  Information,  637.  R.  v.  Langley, 
Holt's  R.  654. 


CONTEMPTS,  ETC.  200 

too  remote  to  be  satisfactory.  But  the  *casG  might  fall  [  *200  ] 
under  a  very  different  consideration  if  a  magistrate  were 
to  be  charged  with  some  specific  act  of  oppression  or  corruption 
in  his  judicial  capacity.  And  it  is  clear  that  general  abuse,  in 
such  cases,  whether  the  magistrate  be  absent  or  present,  is  a  suf- 
ficient ground  for  binding  the  offender  to  his  good  behaviour,  or  of 
indictment  if  the  defamation  be  in  writing. 

Next,  where  the  publication  reflects  upon  the  administration  of 
justice. 

Hurry  (c)  had  summoned  Watson,  who  was  a  member  of  a  cor- 
porate body,  into  a  Court  of  Request,  to  recover  the  sum  of  eleven 
shillings  ;  Hurry  was  afterwards  indicted  by  Watson  for  perjury, 
alleged  to  have  been  committed  in  the  Courts  of  Requests,  and  was 
acquitted  on  the  merits.  Hurry  then  brought  an  action  against 
Watson,  for  a  malicious  prosecution,  in  which  he  recovered  £3000 
damages,  and  the  court  refused  to  set  aside  the  verdict.  A  major- 
ity of  the  corporation  afterwards  entered  a  resolution  in  their  books, 
asserting,  "  That  3Ir.  Watson  had  been  actuated  by  motives  of  pub- 
lic justice,''^  and  voted  him  the  sura  of  X2300. 

An  information  was  applied  for,  one  ground  for  which  was,  that 
the  terras  of  the  order  constituted  a  high  contempt  of  the 
administration  of 'justice.  On  granting  the  information,  [  *201  ] 
Ashurst,  J.  observed,  '"  The  assertion  that  he  was  actu- 
ated by  motives  of  public  justice,  carries  with  it  an  imputation  on 
the  public  justice  of  the  country  ;  for  if  these  were  his  only  motives 
then  the  verdict  must  be  wrong." 

And  BuUer,  Justice,  "  Nothing  can  be  of  greater  importance  to 
the  welfare  of  the  public  than  to  put  a  stop  to  the  animadversions 
and  censures  which  are  so  frequently  made  upon  courts  of  justice  in 
this  country  ;  they  can  be  of  no  service,  and  may  be  of  the  most 
mischievous  consequences.  Cases  may  happen  in  which  the  judge 
and  jury  may  be  mistaken  ;  when  they  are,  the  law  has  afforded  a 
remedy,  and  the  party  injured  is  entitled  to  pursue  every  inethod 

See  alfo  ihe  Queen  r.  Nun,  10  Mod.  18G.  11  Mod.  166  12  Mod.  98,  514. 
Lord  Holt  held  that,  though  an  insolent  witness  miohl  be  committed  by  the 
court  for  a  contempt,  he  could  not  be  indicted.     7  Mod.  28. 

(c)  The  King  v.  Watson  and  others,  2  T.  R.  199. 


201  CRIMINAL  DIVISION— LIBELS 

vrhich  the  law  allows  to  correct  the  mistake  ;  but  when  a  person  has 
recourse  to  a  writing  like  the  present,  hy  publications  in  print,  or 
by  any  other  means,  to  calumniate  the  proceedings  of  a  court  of 
justice,  the  obvious  tendency  of  it  is  to  weaken  the  administration  of 
justice,  and  in  consequence  to  sap  the  very  foundation  of  the  consii- 
tution  itself." 

An  information  had  been  filed  by  the  Attorney-General,  against 
TVhiie  and  others,  for  an  abusive  comment  on  the  conduct  of  a  judge 
and  jury,  by  whom  a  person  had  lately  been  tried  for  murder  and 

acquitted.  Upon  the  trial  of  the  defendants  for  the  libel, 
[  *202  ]     Grose,  J.  informed  the  jury,  that  in  *case  they  were  of 

opinion  that  the  publication  had  been  made,  not  with  a 
view  to  elucidate  the  truth,  but  to  injure  the  characters  of  individ- 
uals and  to  bring  into  contempt  the  administration  of  justice  in  the 
country,  they  ought  to  find  the  defendants  guilty  (d). 

The  same  policy  which  prohibits  seditious  comments  on  the  King's 
conduct  and  goveijnment,  extends  to  reflections  on  the  proceedings 
of  the  two  houses  of  Parliament.  These  bodies,  so  essential  a  part 
of  the  constitution,  are  at  all  events  entitled  to  reverence  and  re- 
spect on  account  of  the  great  and  important  public  services  which 
they  are  bound  to  discharge.  They  have  exercised,  from  very  early 
times,  the  means  of  repressing  immediate  insults  and  contempts  of 
their  authority,  which  are  essential  at  least  to  their  dignity,  if  not 
to  their  very  existence  ;  nevertheless,  they  have  been  sparing  in  the 
exercise  of  their  extensive   and  apparently   undefined  powers,  and 

have,  in  many  instances,  waived  their  privileges,  and  de- 
[  *203  ]     livered  over  offenders  to  be  dealt  with  *by  the  common 

law.  It  seems  to  have  been  the  policy  of  the  courts  to 
encourage  such  a  proceeding:  and  it  is  no  less  the  duty  of  juries  to 
pay  a  ready  attention  when  proof  of  such  insults  is  submitted  to 
them. 

(d)  The  Jury  found  them  guilty,  and  they  were  sentenced  to  three  years'  im- 
prisonment. 

See  also  the  case  of  the  King  v.  Smith,  Skinn.  124,  where  the  charge  wa3 
that  the  defendant  had  instructed  Stephen  Culledge  to  say  on  his  trial  at  Oxford, 
that  "  Government  might  as  well  have  hanged  him  at  Tyburn,  as  brought  him 
hiiher  to  murder  him  with  a  little  more  formality." 


ON  THE  HOUSES  OF  PARLIAMENT.  203 

In  the  case  (e)  of  tliR  King  v.  Rayner^  the  defendant  having 
been  convicted  of  printing  a  scanda'ous  libel  upon  the  Houses  of 
Lords  and  Commons,  called  "  Robin's  Reign,  or  Seven's  the  iMain," 
the  court  set  a  fine  of  <£50  upon  him,  committed  him  for  two  years, 
and  until  ho  should  pay  the  fine,  and  likewise  till  he  should  find  se- 
curity for  his  good  behaviour  for  seven  years. 

William  Owen  (/)  was  tried  upon  an  information  exhibited 
against  him  for  publishing  a  malicious  libel,  entitled  "  The  Case  of 
the  Honourable  Alexander  iNlurray,  Esq.  in  an  Appeal  to  the  Peoplo 
of  Gieat  Britain,"  «§tc.  tending  to  scandalize  and  vilify  the  whole 
body  of  the  Commons  in  Parliament  assembled  ;  to  represent  the 
proceedings  in  Parliament  as  cruel,  arbitrary,  and  oppressive ;  to 
make  it  believed  that  the  Commons  in  Parliament  as-rcmbled  had 
acted,  in  their  legislative  capacity,  in  open  violation  of  the  constitu- 
tion ;  and  also  to  represent  the  said  House  of  Commons  as  a  court 
of  inquisilion,  &c.  &c. 

*Upon  the  publication  of  this  alleged  libel  by  the  dc-     [  *204  ] 
fendant,  the  Commons  addressed  the  King,  desiring  his 
majesty  to  give  orders  to  prosecute  the   publisher,  which  was  (^) 
done. 

After  the  impeachment  of  Mr.  Hastings,  a  review  of  the  articles 
of  impeachment  was  published,  by  John  Stockdale.  Upon  the  sug- 
gestion of  Mr.  Fox,  one  of  the  managers  of  the  impeachment,  the 
House  unanimously  voted  an  address  to  the  King,  praying  his  ma- 
jesty to  direct  his  Attorney-General  (A)  to  file  an  information  against 
Mr.  Stockdale,  as  the  publisher  of  a  libel  upon  the  Commons.  The 
Attorney  General,  on  opening  the  case  to  the  jury,  after  stating  tho 
address  of  the  Commons,  proceeded  to  obseive,  "  I  state  it  as  a 
measure  which  they  have  taken,  thinking  it,  in  their  wisdom,  as 
every  one  must  think  it,  to  be  the  fittest  to  bring  before  a  jury  of 
their  country  an  ofiender  against  themselves,  avoiding  thereby,  what 

(e)  2  Barnard.  K.  B.  293.     Dig.  L.  L.  125. 
(/)  Michs.  25  G.  2.  K.  B.  MSS.  Dig.  L.  L.  67. 
{g)  He  was  tried  before  Lord  C.  J.  Lee,  and  acquitted. 
{h)  Sir  Archibald  Macdonald,  afterwards  Lord  Chief  Baron  of  the  Court  of 
the  Exchequer. 


204  CRIMINAL  DIVISION— LIBELS 

sometimes  indeed  is  unavoidable,  but  which  tbey  wish  to  avoid 
whenever  it  can  be  done  with  propriety,  the  acting  both  as  judges 
and  accusers,  which   they   must  necessarily   have  done,  had  ihey 

resorted  to  their  own  powers,  which  are  great  and  exten- 
[  *205  ]     sive,  for  the  purpose  of  *vindicating  themselves  against 

insult  and  contempt,  but  which,  in  the  present  instance, 
they  have  wisely  foreborne  to  exercise,  thinking  (z)  it  better  to  leave 
the  offender  to  be  dealt  with  by  a  fair  and  impartial  jury." 

In  the  case  of  Burdett,  Bart.  v.  Abbott  (k)  it  was  held,  on  a 
consideration  of  all  the  authorities,  that  a  commitment  by  the  speak- 
er of  the  House  of  Commons  of  the  plaintiff,  a  member  of  the  House, 
upon  a  resolution  of  the  House  that  a  printed  paper,  the  printing  of 
which  had  been  authorised  by  the  plaintiff,  was  a  libel  on  the  House, 
and  that  an  order  by  the  House  that  he  should  be  committed  on  the 
speaker's  warrant  was  legal  (Jc). 

(i)  Ridgway's  Speeches  of  the  Hon.  T.  Erskine. 

(i)  14  East.  1.  Trespass  against  the  speaker  of  the  House  of  Commons  for 
forcibly,  and  with  the  assistance  of  armed  soldiers,  breaking  into  the  messuage 
of  the  plaintiff,  (the  outer  door  being  shut  and  fastened,)  and  arresting  hina 
there,  and  taking  him  to  the  Tower  of  London  and  imprisoning  him  there ;  it 
was  held  to  be  a  legal  justification  and  bar  to  plead  that  a  parliament  was  held 
which  was  sitting  during  the  period  of  the  trespasses  complained  of;  that  the 
plaintiff  was  a  member  of  the  House  of  Commons,  that  the  house  having  re- 
solved "that  a  certain  letter,"  &c.  (in  Cobbett's  Weekly  Register,)  was  a 
libellous  and  scandalous  paper,  reflecting  on  the  just  rights  and  privileges  of  the 
house,  and  that  the  plaintiff  (who  had  admitted  that  the  said  letter,  &c,  was 
printed  by  his  authority)  had  been  thereby  guilty  of  a  breach  of  the  privileges 
*of  that  house,  had  ordered  that,  for  his  said  offence,  he  should  be 
[  *206  ]  committed  to  the  Tower,  and  that  the  speaker  should  issue  his  war- 
rant ;  and  that  accordingly  the  defendant,  as  speaker,  in  execution  of 
the  said  order,  issued  his  warrant  to  the  Serjeant  at  arms,  to  whom  the  execution 
of  such  warrant  belonged,  to  arrest  ihe  plaintiff  and  commit  him  to  the  custody 
of  the  lieutenant  of  the  Tower  ;  and  issued  another  warrant  to  the  lieutenant  of 
the  Tower  to  receive  and  detain  the  plaintiff  in  custody  during  the  pleasure  of 
the  House,  by  virtue  of  which  first  warrant  the  serjeant  at  arms  went  to  the 
messuage  of  the  plaintiff  where  he  then  was  to  execute  it;  and  because  the 
outer  door  was  fastened,  and  he  could  not  enter,  after  audible  notification  of  his 
purpose  and  demand  made  of  admission,  he  by  the  assistance  of  the  said  soldiers 
broke  and  entered  the  plaintiff's  messuage,  and  arrested  and  conveyed  him  to 
the  Tower,  where  he  was  received  and  detained  in  custody  under  the  other  war- 


ON  THE  HOUSES  OF  PARLIAMENT.  206 

rant  by  the  lieutenant  of  the  Tower.     See  also  Mr.  Holt's  Treatise  on  the  Law 
of  Libel,  2nd  Edition,  p.  132,  and  the  authorities  there  collected. 

Note. — Scandalous  reflections  upon  the  grandees  of  the  realm  fall  within  the 
division  of  the  subject  which  has  been  considered  in  this  chapter;  but  since  the 
proceeding  by  writ  of  Scandalum  Magnatum  is  of  a  civil  as  well  as  of  a  crimin- 
al nature,  the  extent  of  the  injury  has  been  treated  of  in  a  previous  chapter,  vol. 
I  c,  6. 


Vol.  II.  81 


CHAPTER   IX. 


Publications  exciting  to  an  illegal  Act. 

[  •207  ]  *Lastly,  the  mischievous  quality  of  the  communica- 
tion may  consist  in  its  tendency  to  excite  an  individual  to 
the  commi.ssion  of  some  illegal  act. 

This  offence  may  consist  either  in  a  direct  solicitation,  or  in  tho 
holding  out  some  indirect  but  forcible  moiivo  to  the  commission  of 
such  an  act. 

In  the  cases  of  high  treason  and  misdemeanors,  all  advisers  are 
considered  as  principals,  and  are  identified  with  them  as  to  all  penal 
consequences.  In  petit  treason  (a)  and  felonies,  a  procurer  by  so- 
licitation or  advice  is  punishable  as  an  accessory  before  the  fact ;  and 
by  many  statutes  creating  new  offences,  counsellors,  aiders,  and 
abettors,  are  subjected  to  specific  punishments. 

And  where  the  solicitation  is  not  followed  by  the  actual  commis' 
sion  of  the  offence  contemplated,  it  is  perfectly  clear  that 
[  *208  ]  the  adviser  is  liable  to  *be  (b)  punished  for  his  'wilful  at- 
tempt to  violate  the  law,  through  the  agency  of  ano- 
ther. 

And  secondly,  the  holding  out  any  indirect  but  forcible  motive,  to 
induce  the  commission  of  an  illegal  act,  is  in  itself  indictable.  Thus 
it  is  not  only  illegal  to  send  a  challange  to  fight,  but  even  an  attempt 
to  provoke  (c)  another  to  send  such  a  challange  is  a  misdemeanor, 

(a)  1  Hale's  P.  C.  G15. 

(I)  R.  V.  Phillips,  6  East.  464.  R.  v.  Southerton,  6  East.  126.  R,  v.  Hig- 
gins,  2  East.  5. 

(c)  By  22  G.  II.  c.  23,  "  If  any  person,  onboard  the  fleet,  shall  use  reproach- 


LIBELS  ON  INDIVIDUALS.  208 

since  the  endeavor  is  an  act  done  towards  the  accomplishment  of  the 
offence  (J). 

With  respect  to  communications  tending  to  acts  of  personal  vio- 
lence, there  is  an  impc  rtant  distinction  between  words  spoken  and 
"written,  or  printed  publications  ;  the  former  are  not  indictable,  though 
they  be  scurrilous,  and  reflect  upon  the  character  of  an  individual, 
or  even  be  addressed  personally  to  him,  unless  they  (^) 
amount  to  a  direct  *solicitation  to  a  breach  of  the   peace,     [  *209  ] 
as  by  a  challange  to  fight.     The  defendant  (/)  said  the 
mayor  of  Salisbury,  "  You,  Mr.  Mayor,  are  a  rogue  and  a  rascal ;" 
and  it  was  held,  after  great  deliberation,  that  the  words  were  not  in- 
dictable, since  they  were  not  spoken  to  him  in  the  execution  of  office  ; 
thaj;  if  they  had  been  put  into  writing  they  would  have  constituted 
a  libel,  which  Avould  have  supported  either  an  indictment  or  an  ac- 
tion ;  but  that  they  were  but  loose  or  unmannerly  words, 
like  those  spoken  of  an  alderman  of  *Hull — "  When  he     [  *210  ] 
puts  on  his  gown,  Saten  enters  into  it,"  which   were  ad- 

ful  or  provoking  speeches  or  gestures,  tending  to  make  any  quarrel  or  distuibance, 
he  shall,  upon  being  convicted  thereof,  suffer  such  punishment  as  a  Court  Mar- 
tial shall  impose. 

(d)  G  East.  4G4. 

(e)  6  Mud  125.  Ld.  Ray.  1030.  The  terms  liar  and  rogue  are  not  indict- 
able when  spoken,  because  (as  is  said)  they  do  not  immediately  tend  to  a  breach 
of  the  peace,  4  Ins.  181. 

Notwithstanding  this  authority,  it  would  not  be  easy  to  select  two  other  words 
in  the  language  which  do  so  efficaciously  tend  to  a  breach  of  the  peace,  or  which 
have,  in  fact,  been  so  frequently  the  forerunners  of  blows,  as  the  two  alluded  to. 
The  reason  for  tolerating  such  oral  but  tempting  incitements  to  violence,  seems 
to  be  well  grounded  apprehension,  that,  to  subject  the  speakers  of  abusive  words 
to  punishment,  would  be  to  cherish  a  spirii  of  petty  litigation,  the  inconvenienco 
of  which  would  outweigh  the  mischief  intended  to  be  remedied.  The  experi- 
ment was  made  with  respect  to  actions  (vol.  i.  p.  22.),  but  the  judges  were  quick- 
ly induced  to  abandon  the  rule  they  had  laid  down,  which  does  not  seem  ever  to 
have  been  extended  in  the  same  latitude  to  the  criminal  offence  ;  and  Lord  Holt 
observed,  that  to  encourage  indictments  for  words  would  render  them  as  uncer- 
tain as  actions  for  words  are.     Supra  197. 

By  St.  9  Ann.  c.  14,  s.  8,  in  case  any  person  shall  challenge  another,  or  pro- 
voke him  to  fight,  on  account  of  money  won  at  play,  he  shall,  upon  conviction, 
forfeit  all  his  goods  and  chattels  and  personal  estate  whatsoever,  and  shall  suffer 
imprisonment  for  two  years.     See  Haw.  P.  C.  b.  1,  c.  72,  s.  42, 

(/)  The  Queen  v.  Langley,6  Mod.  125. 


210  CRIMINAL  DIVISION. 

judged  to  be  not  indictable ;  and  Holt,  C.  J.  said,  that  words  direct- 
ly tending  to  a  breach  of  the  peace,  may  be  indictable  ;  but  other- 
wise, to  encourage  indictments  for  words,  -would  make  them  as  uncer- 
tain as  actions  for  words  are. 

But  it  seems  to  be  perfectly  settled,  that  any  malicious  defamation 
of  cny  person,  expressed  in  print  or  in  writing,  or  by  means  of 
pictures  or  signs,  and  tending  to  provoke  him  to  anger  and  acts  of 
violence,  or  to  expose  him  to  public  hatred,  contempt,  or  ridicule 
((C)  amounts  to  a  libel  in  the  indictable  sense  of  the  word.  And 
since  the  reason  is,  that  such  publications  create  ill  blood, 
[  *211  ]  and  manifestly  tend  to  a  disturbance  of  *the  public  peace, 
the  degree  of  discredit  is  immaterial  to  the  essence  of 
the  libel,  since  the  law  cannot  determine  the  degree  of  forbearance 
which  a  party  reflected  upon  will  exert  before  he  is  excited  and  pro- 
voked to  acts  of  outrage,  and  therefore  prohibits  equally  all  imputa- 
tions conveyed  by  such  means,  and  possessing  such  a  tendency. 

The  grounds  of  the  distinction  between  oral  and  written  provoca- 
tion, are  to  be  sought  after  in  practical  wisdom  and  experience, 
rather  than  in  principle,  inasmuch  as  the  tendency  to  produce  illegal 
violence  is  oftentimes  stronger  in  the  former  case  than  in  the  latter : 
for  instance,  contumlious  and  insulting  language  is  more  likely  to  in. 
flame  the  party  to  whom  it  is  applied,  to  acts  of  outrage,  when  it  is 
uttered  publicly  in  his  hearing,  than  if  even  the  same  expressions 
were  to  be  conveyed  to  him  by  a  private  letter,  when  the  insult 
would  be  divested  of  its  main  aggravation, — its  publicity, — and  the 
distance  of  the  offended  party  from  the  aggressor  would  allow  any 
irritation  which  was  created  an  opportunity  to  subside,  without  vent- 

(g)  3  Black.  Com.  150.  Haw.  PL  Cr.c.  73.  s.  1.5  Co.  125.  5  Mod.  165.  Salk- 
418.  Sir.  422,  791.  12  Mod.  221.  Ld.  Ray.  416.  1  Sid.  270.  Supra,  v.  i.  c.  5. 

As  every  perso:i  desires  to  appear  agreeable  in  life,  and  must  be  highly 
provoked  by  such  ridiculous  representations  of  him  as  tend  to  lessen  him  in  the 
esteem  of  the  world,  and  take  away  his  reputation  which,  to  some  men,  is  more 
dear  than  life  itself;  it  has  been  held,  that  not  only  charges  of  a  flagrant  nature 
and  which  reflect  a  moral  turpitude  on  the  party,  are  libellous,  but  also  such  as 
set  him  in  a  scurrilous  ignominious  light,  whether  expressed  in  printing,  or 
writing,  or  by  signs,  or  pictures,  for  these  equally  create  ill  blood  and  provoke 
the  parties  to  acts  of  revenge  and  breaches  of  the  peace.  Bac.  Ab.  tit.  Libel. 
A.  2. 


LIBELS  ON  INDIVIDUALS.  211 

ing  itself  in  an  act  of  violence.     It  seems  that,  in  general,  where  a 
defamatory  libel  reflecting  on  the  character  of  an  in  Uvdual  ■will 
support   an  action  for  damages,   the  publication  of    it 
amounts  to  an  indictable  off"ence,  inasmuch  as  it  *tends  to     [  *212  ] 
provoke  animosity  and  violence,  and  to  disturb  the  peaeo 
of  society  (7i). 

An  indictment  (i)  also  lies  for  a  lihel  reflecting  upon  the  memory 
of  a  person  who  is  dead,  if  it  be  published  with  the  malevolent  pur- 
pose to  injure  his  family  and  posterity,  and  to  expose  them  to  con- 
tempt atid  disgrace;  for  the  chief  (A;)  cause  of  punishing  offences 
of  this  nature,  is  their  tendency  to  a  breach  of  the  peace ;  and  al- 
though the  party  be  dead  at  the  time  of  publishing  the  libel,  yet 
(according  to  Lord  Coke)  it  stirs  up  others  of  the  same  family, 
blood,  or  society,  to  revenge,  and  to  break  the  peace. 

In  the  case  of  the  King  v.  Chrichlei/  (/),  an  information  was  grant- 
ed against  the  defendant,  for  publishing  the  following  libel,  reflect- 
ing upon  Sir  C.  Gaunter  Nicoll,  Lady  Dartmouth's  father,  and  oa 
the  government :  "  On  Saturday  evening  died  of  the 
small  pox.  Sir  C.  G.  Nicoll,  Knight  of  the  *most  honour-  [  *213  ] 
able  order  of  the  bath,  and  representative  in  ParUament 
of  the  horough  of  Peterborough.  He  could  not  be  called  a  friend 
to  his  country,  for  he  changed  his  principles  for  a  red  ribband,  and 
voted  for  that  pernicious  project,  the  excise."  But,  as  was  observ- 
ed by  Lord  Kenyon,  C.  J.  in  the  case  of  the  King  v.  Topham  (in"), 
"  To  say  that  the  conduct  of  a  dead  person  can  at  no  time  be  can- 
vassed ;  to  hold  that,  even  after  ages  are  past,  the  conduct  of  bad 
men  cannot  be  contrasted  with  that  of  the  good,  would  be  to  exclude 
the  most  useful  part  of  history."  The  malicious  intension  of  the 
defendant,  therefore,  to  injure  the  family  and  posterity  of  the  de- 
ceased, must  be  expressly  averred  and  clearly  proved. 

{h)  Skinn.  123.  2  Wils.  204.  Com.  Dig.  tit.  Libel,  c.  3.  Bac.  Ab.  tit.  Slan- 
der, 202.  3  Bl.  Com.  125.  2  Camp.  R.  511,  and,  therefore  as  to  the  e.>ctent  of 
the  offence,  see  Vol.  I.  c.  5.  p.  148.  In  some  instances  an  indictment  lies  for 
words  which  would  not  support  an  action.  See  Com.  Dig.  Ind.  D.  R.  v. 
Darby,  3  Mod.  139. 

(s)  5  Co.  125.  Haw.  PI.  Cr.  c.  73.  s.  1.  The  King  v.  Topham,  4  T.  R.  126. 

(k)  Haw.  PI.  Cr.  c.  li.  s  3.     5  Co.  125.     R.  v.  Walter,  2  Esp.  C.  51. 

{I)  4  T.  R.  129,  in  the  notes.  (m)  4  T.  R.  129. 


213  CRIMINAL  DIVISION. 

And  it  is  not  necessary  that  the  libel  should  reflect  upon  the 
character  of  any  particular  individual  (?z),  provided  it  immediately 
tend  to  produce  tumult  and  disorder. 

*An  information  was  prayed  against  the  defendant  for  publishing 
a  paper  containing  an  account  of  a  murder  committed 
[  *214  ]  upon  a  Jewish  woman  and  her  child,  by  certain  Jews 
lately  arrived  from  Portugal,  and  living  near  Broad- 
street,  because  the  child  was  begotten  by  a  Christian ;  and  the  aflS- 
davit  set  forth,  that  several  persons  mentioned  therein,  who  were  re- 
cently arrived  from  Portugal,  and  lived  in  Broad-street,  had  been 
attacked  by  multitudes,  in  various  parts  of  the  city,  barbarously 
treated,  and  threatened  with  death,  in  case  they  were  found  abroad 
any  more  ;  and  it  was  objected,  that  no  information  could  be  grant- 
ed, because  it  did  not  appear,  in  particular,  who  the  persons  reflect- 
ed upon  were.  But  by  the  court,  "  Admitting  that  an  information 
for  a  libel  may  be  improper,  yet  the  publication  of  this  paper  is  de- 
servedly punishable  in  an  information  for  a  misdemeanor,  and  that 
of  the  highest  kind  ;  *such  sort  of  advertisements  neces- 
[  215  ]  sarily  tending  to  raise  tumults  and  disorder  among  the 
people,  and  inflame  them  with  an  universal  spirit  of  bar- 
barity, against  a  whole  body  of  men,  as  if  guilty  of  crimes  scarcely 
practicable,  and  wholly  incredible  (o)." 

(n)  3  Bac.  Abr.  494.  2  Barnard.  K.  B.  138.  166.  The  King  v.  Osborne,  D. 
L.  L.  79. 

An  indictment  for  a  libel  on  several  persons,  to  the  jurors  unknown,  is  bad. 
R.  V.  Ornae  (or  Alme,)  and  Nut.  Ld.  Ray.  486.  3  Salic.  224.;  but  a  libel  upon 
one  of  a  body  of  persons  without  naming  him,  is  a  libel  upon  the  whole,  and 
may  be  so  described.  The  defendant  published  the  following  advertisement  in 
a  newspaper  ;  Whereas  an  East  India  Director  has  raised  the  price  of  green  tea 
to  an  extravagant  rate,  the  same  gentleman  being  also  concerned  with  the  Swe- 
dish East  India  Company  ;  the  English  proprietors  hope  he  will  find  some 
measures  to  raise  Lohea  tea  in  Sweden,  that  the  Company  may  have  an  oppor- 
tunity to  ship  off  some  of  theii  bad  bohea  tea,  instead  of  having  it  burnt  as 
usual."  Upon  motion  for  an  information,  Lee,  C.  J.  observed,  "  Where  a  paper 
is  published,  equally  reflecting  upon  a  number  of  people,  it  reflects  upon  all, 
and  readers,  according  to  their  different  opinions,  may  apply  it  so."  R.  v. 
Jenour,  7  Mod.  400.  An  information  has  been  granted  for  charging  one  of 
several  trustees  with  a  breach  of  trust.  R.  v.  Griffin,  Rep.  T.  H.  39.  See 
below  tit.  Information. 

(o)  R.  V.  Osborne,  2  Kel.  230.  pi.  183.  2  Barnard.  K.  B.  138,  166.  and  see 
below  tit.  Information.  ' 


CHAPTER    X. 


Publications  against  sound  Policy  and  Convenience. 

*NEXT,  every  publication  is  intrinsically  illegal  "which  tends  to 
produce  any  public  inconvenience  or  calamity.  Under 
this  division,  those  rank  highly,  in  respect  of  the  magni-  [  *216  ] 
tude  of  their  results,  -which  tend  to  disturb  the  amicable 
relations  which  subsist  between  this  and  other  nations,  by  malicious 
reflections  upon  those  who  are  possessed  of  high  rank  and  influence 
in  foreign  states.  As  the  natural  tendency  of  these  is  to  involve 
the  govemment  in  a  foreign  war,  their  authors  have,  in  several  in- 
stances, been  punished  as  offenders  at  common  law.  Thus,  in  the 
case  (a)  of  ihe  King  v.  jyEon,  an  information  was  filed  against 
the  defendant  by  the  Attorney-General  (5),  for  publishing  a  libel 
upon  the  Count  de  Guerchy,  who  was  at  that  time  residing  in  this 
kingdom,  in  the  capacity  of  ambassador  from  the  court 
*of  France.  The  information  charged  the  defendant  [  *217  ] 
with  an  intention  to  defame  the  character  and  abilities  of 
the  Count  de  Guerchy ;  to  render  him  ridiculous  and  contemptible ; 
to  arraign  his  conduct  and  behavour  in  his  character  of  ambassador; 
and  to  cause  it  to  be  believed  that  he  had,  after  his  arrival  in  this 
kingdom,  been  guilty  of  unjust,  unwarrantable,  and  oppressive  pro- 
ceedings towards  the  defendant  and  his  friends ;  and  to  insinuate, 
that  he  was  not  fit  or  qualified  to  execute  the  office  and  functions  of 

(a)  Easter  T.  4  G.  3.  1764.  K.  B.  MSS.  Dig.  L.  L.  88. 
(6)  Sir  Fletcher  Norton. 


217  CRIMINAL  DIVISION. 

ambassador.  The  defendant  was  convicted. — Lord  George  Gordon 
(c)  was  found  guilty  upon  an  information,  for  having  published  some 
severe  reflections  upon  the  Queen  of  France,  in  which  she  was  re- 
presented as  the  leader  of  a  faction  ;  and  Mr.  Justice  Ashurst,  in 
passing  sentence,  observed,  that  unless  the  authors  of  such  publica- 
tions were  punished,  their  libels  would  be  supposed  to  have  been 
made  with  the  connivance  of  the  state.  The  defendant,  John  Vint 
((2),  was  found  guilty  upon  an  information  charging  him  with  having 
published  the  following  libel,  "  The  Emperor  of  Russia  is  rendering 

himself  obnoxious  *to  his  subjects,  by  various  acts  of 
[  *218  ]     tyranny ;  and  ridiculous  in  the  eyes  of  Europe,  by  his 

inconsistency ;  he  has  lately  passed  an  edict  to  prohibit 
the  exportation  of  deals  and  other  naval  stores.  In  consequence  of 
this  ill-judged  law,  a  hundred  sail  of  vessels  are  likely  to  return  to 
this  country  without  their  freight ;  "  with  intent  to  traduce  the 
Emperor  of  Russia,  and  interrupt  and  disturb  the  friendship  subsist- 
ing between  that  country  and  Great  Britain. 

Jean  Peltier  was  found  guilty  upon  an  information,  charging  him 
with  having  published  a  malicious  libel,  with  intent  to  vilify  Napo- 
leon Bonaparte,  the  Chief  Consul  of  the  French  Republic,  and  to 
excite  and  provoke  the  citizens  of  the  said  republic  to  deprive  the 
said  Napoleon  Bonaparte  of  his  consular  dignity,  and  to  kill  and 
destroy  him,  and  to  interrupt  the  friendship  and  peace  subsisting  be- 
tween our  Lord  the  King  and  his  subjects  and  the  said  Napoleon 
Bonaparte  and  the  French  republic.  The  most  obnoxious  passages 
of  the  libel  were  these :  "  0  !  eternal  disgrace  of  France  ; — Caesar, 
on  the  Banks  of  the  Rubicon,  has  against  him  in  this  quarrel,  the 
Senate,  Pompey,  and  Cato ;  and  in  the  plains  of  Pharsalia,  if  for- 
tune is  unequal,  if  you  must  yield  to  the  destinies,  Rome  in  this  sad 
reverse  at  least  remains  to  avenge  you  a  poignard  among  the  last 

Roman."  "As  for  me,  far  from  envying  *his  (Bona- 
[  *219  ]     parte's )    lot,      let    him    name  (I  consent    to  it)    his 

worthy  successor  ;  carried  on  bis  shield,  let  him  be  elect- 

(c)  Hil.  28  G.  3.  The  defendant  was  sentenced  to  pay  a  fine  of  :C500,  to  be 
imprisoned  in  Newgate  for  the  space  of  two  years,  and  afterwards  to  give  se- 
curity for  his  good  behaviour  for  the  space  of  fourteen  years. 

(d)  40  G.  lU. 


PUBLICATIONS  AGAINST  SOUND  POLICY.      219 

ed  Emperor.  Finally  (and  Romulus  recals  the  thing  to  mind),  I 
wish  that  on  the  morrow  he  may  have  his  apotheosis.  Amen  !  " — 
Upon  the  trial,  Lord  Ellenborough,  C.  J.  referred  to  the  cases  of 
Lord  George  Gordon  and  Vint,  and  said,  "  I  lay  it  down  as  law, 
that  any  publication  which  tends  to  disgrace,  revile,  and  defame  per- 
sons of  considerable  situations  of  power  and  dignity  in  foreign  coun- 
tries, may  be  taken  to  be  and  treated  as  a  libel ;  and  particularly 
where  it  has  a  tendency  to  interrupt  the  amity  and  peace  betweea 
the  two  countries." 

By  the  statute  35  H.  VIII.  c.  14  (g),  it  is  made  felony  to  de- 
clare any  false  prophecy  upon  occasion  of  arms,  fields,  or  letters. 

By  St.  5  Eliz.  c.   15,  "  If  any  person  advisedly  and  directly  ad- 
vance,  publish,  or  set  forth  by  writing,   printing,  signing,  or  any 
other  open  speech  or  deed,  to  any  person  or  persons,  any  fond,  fan- 
tastical, or  false  prophecy,  upon  or  by   the  occasion  of  any  arms, 
fields,  beasts,  badges,  or  such  other  like  things  accustomed  in  arms, 
cognizances,  or  signets,  or  upon  or  by  reason  of  any  time,  year,  or 
day,  name,  bloodshed,  or  war,  to   the  intent  thereby  to 
make  any  rebellion,  insurrection,  *dissension,  loss  of  Ufe,     [  *220  ] 
or  other  disturbance,  within  the  realm,  &c.   upon  the 
first  conviction  he   shall  suffer  one  year's  imprisonment,  and  pay  a 
fine  of  ^10,  and,  for  a  second  offence,  shall  suffer  imprisonment 
during  life,  and  forfeit   all  goods  and  chattels,  real  and  personal. 
But  it  is  provided,  that  no  one  shall  be  impeached  for  any  offence 
against  the  act,  unless  within  six  months  after  the  offence  commit- 
ted (/). 

It  has  been  from  early  times  considered  as  an  offence  at  Common 
Law,  to  attempt  by  means  of  false  rumours,  to  raise  the  price  of 
provisions,  or  other  necessaries  of  life. 

In  43  Ass.  (g')  it  was  presented  that  a  Lombard  did  procure  to 
promote  and  enhance  the  price  of  merchandize  ;  and  the  Lombard 
demanded  judgment  of  the  presentment  for  two  causes — 1.  That  it 

(e)  See  also  3  and  4  Ed.  VI.  and  7  Ed.  VI. 

(/ )  By  23  Ehz.  c.  2,  it  was  made  felony  to  cast  the  nativity  of  the  Qaeen, 
or  to  seek  to  know  and  set  forth  how  long  the  Queen  shall  live,  or  who  shall 
reign  after  her  decease,  or  to  utter  any  false  prophecies  to  any  such  intent,  or 
to  wish  or  desire  the  death  or  deprivation  of  the  Qaeen-  (g)  P-  38- 

Vol.  XL  82 


220  CRIMINAL  DIVISION. 

did  not  sound  in  forestalling; — 2.  That  of  his  endeavour,  or  attempt 
bj  words,  no  evil  was  put  in  ure,  that  is,  no  price  was  enhanced ; 
but  both  objections  were  overruled  ;  "  Whereby,"  says 
[  *221  ]  Sir  E.  Coke  (A),  it  appears  that  the  attempt  by  *word3 
to  enhance  the  price  of  merchandize,  was  punishable  by 
law,  and  did  sound  in  forestalment. 

And  from  (i)  the  same  report  it  appears,  that  to  attempt  by  such 
rumours  to  diminish  the  price  of  any  staple  commoditj,  to  the  pre- 
judice of  the  dealers  in  general,  is  likewise  an  offence  at  common 
law  ;  for  it  is  there  said,  "  Knivet  reported  that  certaia  people 
came  to  Coteswold,  in  Herefordshire,  and  said,  in  deceit  of  the  peo- 
ple, that  there  were  such  wars  beyond  seas,  as  no  wool  could  pass 
or  be  carried  beyond  seas,  whereby  the  price  of  wool  was  abated  ; 
and  upon  presentment  thereof  made,  they  appeared,  and  upon  their 
confession,  they  were  put  to  fine  and  ransom." 

And  in  (^)  Mich,  term,  39  and  40  Eliz.  it  was,  after  conference 
and  mature  deliberation,  resolved  by  all  the  justices,  that  every 
practice  or  device,  by  act,  conspiracy,  words,  or  news,  to  enhance 
the  price  of  provisions,  or  other  merchandize,  was  punishable  by  law. 

An  information  {I)  was  filed,  charging  the  defendant,  that  he, 
intending  to  enhance  the  price  of  hops,  did,  at  Worcester,  in  the 
hearing  of  divers  hop  dealers  and  planters,  declare,  that  the  then 
present  stock  of  hops  was  nearly  exhausted,  and  would 
[  *222  ]  be  exhausted  before  the  crop  of  hops  *then  growing  could 
be  brought  into  the  market ;  and  that  there  would  soon 
be  a  scarcity  of  hops,  with  intent  and  design,  by  such  rumours  and 
reports,  to  induce  dealers  in  hops  not  to  carry  any  to  market  for 
sale.  When  the  defendant  (m)  was  brought  up  to  receive  judg- 
ment, his  counsel  objected  that  the  counts  charging  him  with  havin* 

{h)  3  Ins.  196.  (i)  43  Ass.  p.  38. 

(k)  3  Ins.  196.  Bro.  Ind.  pi.  40.  (/)  R.  v.  Waddington ,  1  East.  143. 

(m)  He  was  convicted  before  Mr.  J.  Le  Blanc,  at  Worcester,  and  when 
brought  up  10  receive  sentence,  the  court  out  of  mere  indulgence,  allowed  his 
counsel  to  go  fully  into  the  case,  saying,  that  if  it  appeared  that  judgment 
ought  to  be  arrested,  or  a  new  trial  granted,  the  defendant  should  not  be  pre- 
cluded from  the  advantage 


PUBLICATIONS  AGAINST  SOUND  POLICY.      222 

spread  rumours  to  enhance  the  price  of  hops,  did  not  aver  (w)  that 
the  rumours  were  false  ;  and  that  it  should  at  least  have  been  stated 
that  the  price  of  the  commodity  had,  in  fact,  been  raised  by  tho 
rumours.  But  there  were  other  counts  in  the  information,  charging 
the  defendant  with  engrossing  large  quantities  of  hops,  with  intent 
to  prevent  the  same  from  being  brought  to  market,  and  to  re-sell 
the  same  at  an  exhorbitant  profit,  and  thereby  greatly  to  enhance 
the  price  of  hops  ;  and  the  defendant  was  adjudged  to  pay  a  fine 
of  iGSOO  and  to  be  imprisoned  for  one  month. 

The  court  does  not,  in  the  above  case,  appear  to  have  given  an 
express  opinion  upon  the  indictable  quality  of  the  offence  described 
in  the  first  two  counts,  which  consisted  in  the  spreading 
'rumours  generally,  with  intent  to  enhance  the  price  ;  [  *223  ] 
nor  was  this  necessary,  since  the  information  contained 
independent  charges  which  were  deemed  sufficient,  and  upon  which 
the  judgment  appears  principally  to  have  been  founded.  It  was 
contended  by  the  counsel  for  the  prosecution,  that  "  the  spreading 
rumours,  whether  true  or  false,  if  done  with  a  mischievous  intent,  to 
produce  a  public  detriment,  is  indictable  upon  general  principles  of 
law,  in  the  same  manner  as  publishing  a  libel,  however  true  the  facts 
stated  may  be  ;  and  that,  in  Jollife's  case  (o),  the  endeavoring  to 
procure  certain  persons  to  be  appointed  overseers,  was  held  to  bo 
criminal,  though  the  criminalty  consisted  in  the  intent  only,  which 
was  to  derive  a  private  advantage."  It  seems,  however,  to  be  clear, 
that  no  malice  will  render  an  act  indictable,  which  is  in  itself  inno- 
cent and  legal  ;  the  question  therefore  is,  whether  the  publication 
of  real  facts  (the  knowledge  of  which  may  affect  the  price  of  pro- 
visions or  of  merchandize)  can  be  considered  as  detrimental  to  the 
community  ;  if  it  can,  then  a  mischievous  intention  (that  is  ma- 
lice) in  the  absence  of  rebutting  evidence,  is  to  be  presumed  ;  if  it 
cannot,  no  malice,  as  it  seems,  can  render  it  criminal.  In  many 
cases,  the  publication  of  such  facts  would  rather  affect 
the  interests  of  individuals,  than  *those  of  the  community.  [  *224  ] 
If,  for  instance,  a  person  were  truly  to  publish,  that  the 
foreign  markets  were  so  glutted  with  a  particular  commodity,  that 
British  wares,  of  the  same  description,  could  not  be  sold  there,  tho 

(n)  See  Haw.  P.  C.  c.  80,  s.  1.  (o)  4  T.  R.  285. 


iU  CRIMINAL  DIVISION. 

report  might  operate  to  the  immediate  prejudice  of  the  holders  of 
that  article  ;  but  the  prejudice  to  the  public,  namely,  their  exclusion 
from  the  foreign  market,  would  be  attributable  purely  to  the  super- 
fluity which  prevailed  there,  and  not  to  the  communication  made  by 
the  defendant. 

•  It  is  said  to  have  been  resolved  by  all  the  judges,  that  all  wri- 
ters  of  false  news  (p)  are  indictable  and  punishable ;  and,  prob- 
ably, at  this  day  the  fabrication  of  news  likely  to  produce  any  pub- 
lic detriment  would  be  regarded  as  criminal  and  punishable. 

In  the  case  of  the  King  v.  J)e  Berenger  and  others  (5),  it  was 
held  to  be  an  indictable  offence  to  conspire  to  raise  the  price  of  the 
the  public  funds  by  means  oi  false  rumours,  the  end  as  well  as  the 
means  being  illegal. 

(j))  4  Read.  St.  L.  Dig.  L.  L.  23. 

{q)  3  M.  &  S.  67,  the  false  rumour  was  that  N.  Bonaparte  the  then  ruler  of 
France,  with  whom  Great  Britain  was  at  war,  was  dead  ;  and  it  was  laid  to 
have  been  done  with  intent  to  injure  and  aggrieve  all  the  subjects  of  the  king 
•who  should,  on  the  21st  day  of  February,  1814,  (the  day  of  spreading  the 
rumour)  purhcase  any  share  in  the  public  government  funds. 


CHAPTER  XI. 


Of  the  Act  of  Publication. 

*The  plaintiff,  to  entitle  himself  to  damages  in  a  civil  [  *225  ] 
action,  must,  as  has  been  seen,  shew  a  publication  made 
by  the  defendant,  "with  a  wrongful  intention ;  and  whatever  has 
been  said  upon  that  subject  applies  equally  to  the  criminal  proceed- 
ing, with  this  addition,  that  the  sending  of  a  libel  to  the  individual 
reflected  on,  without  exposing  the  contents  to  a  third  person,  is  a 
sufficient  pubhcation  to  support  an  indictment,  on  account  of  its 
tendency  (a),  to  provoke  that  individual  to  commit  a  breach  of  the 
peace. 

According  to  the  general  rule  of  law,  it  is  clear  that  all  who  are 
m  any  degree  accessory  to  the  publication  of  a  libel,  and  by  any 
means  whatever  conduce  to  the  publication,  are  to  be  considered  as 
principles  in  the  act  of  publication :  thus  if  one  suggest  illegal  mat. 
ter,  in  order  that  another  may  write  or  print  it,  and  that  a  third 
may  publish  it,  all  are  equally  amenable  for  the  act  of 
publication,  when  it  has  been  so  effected.  *But  what,  [  *226  ] 
if  no  publication  has  taken  place,  is  the  mere  making  of 
a  libel,  or  the  possession  of  it  when  made  by  another,  a  crime  by 
the  law  of  England. 

Ld.  Coke,  in  the  fifth  report  De  Libellis  Famosis,  resolution  4, 
after  describing  the  different  species  of  libels,  immediately  proceeds 
to  point  out  the  different  modes  of  publication  ;  and  then  observes, 

(a)  1  Will.  Saun.  132,  n.  2.  2  Esp.  R.  226.  5  Mod.  163.  12  Co.  35.  I 
Hob.  62,  215. 


226  CRIMINAL  DIVISION. 

"  It  was  resolved  in  the  Star  Chamber,  in  Salliwoodh  case,  that  if 
one  find  a  libel  (and  would  keep  himself  out  of  danger),  if  it  be  com- 
posed against  a  private  man,  the  finder  either  may  burn  it,  or  pres- 
ently deliver  it  to  a  magistrate  ;  but  if  it  concern  a  magistrate  or 
other  public  person,  the  finder  ought  presently  to  deliver  it  to  a  mag- 
istrate." It  does  not  very  clearly  appear,  whether  this  procedure 
was  prescribed  as  a  strictly  legal  or  merely  as  a  moral  duty  and  mat- 
ter  of  prudence,  since  the  phrase,  "  if  he  would  keep  himself  out  of 
danger,"  is  abundantly  ambiguous.  This  doubt,  however,  is  in  some 
degree  removed  by  reference  to  the  civil  law,  whence  the  doctrine 
is  said  to  have  been  derived  ;  according  to  which  it  seems,  that  the 
finder  of  a  libellus  famosus  was  not  punishable  for  the  mere  keeping 
of  it  in  possession,  but  for  the  improper  publication  of  it. 

Si  quis  famosum  libellum  slve  domi  sive  in  publico  vel  in  quocun- 
que  loco  ignarus  oSenderit,  aut  discerpat  priusquam  alter 
[  *227  ]  inveniat,  aut  nulli  confitealur  *inventum  ;  nam  quicunque 
ohtulerit  inventum,  certum  est  ipsum  reum  ex  lege  retin- 
endum,  nisi  prodideret  auctorem  :  nee  evasurum  poenas  hujusmodi 
criminibus  constitutas,  si  proditus  fuerit  cuiquam  retulisse  quod  leg- 
erit(6). 

By  the  edicts  of  the  Emperors  Valcntinian  and  Valens  : 

"  Si  quis  famosum  libellum  ignarus  repererit  (c),  aut  corrumpat* 
priusquam  alter  inveniat,  aut  nulli  confiteatur  inventum.  Si  vero 
non  statira  easdem  chartulas  corruperit  vel  igne  consumpserit,  sed 
earum  vim  manifestaverit,  sciat  se  quod  auctorem  hujusmodi  delicti 
capitali  sententige  subjugandum."  Again  in  the  Codex  Jusiinianus 
de  faraosis  libellis,  "  Faraosis  libellis  si  quis  scripserit  quod  penineat 
ad  irijuriam  alterius  (c?),  de  qua  est  publica  accusatio  et  poena  cap- 
italis,  non  tantum  in  auctorem  famosi  libelli,  sed  etiam  in  eum  qui 
invenit  nee  combussit  seJ  evulgavit ;  quia  iste  auctor  praesumilur 
esse  libelli,  qui  eum  sparsit  in  vulgus  ncn  prodito  auctore." 

Hence  it  may  be  collected,  that  the  finder  of  a  libel  was  not  pun- 
ishable for  the  mere  keeping  of  it  in  custody,   but  for  its  subsequent 
publication  ;  and  therefore  it  seems  that  the  passage  in 
[  '228  ]     the  resolution  *cited,  was  intended  rather  as  a  caution 

(b)  Theod.Cod  Lib.  9,  tit.  34. 

(c)  Cod.  Lib.  9,  tit.  36.  {d)  lb.  tit.  36 . 


PUBLICATION.  228 

against  the  eifects  of  a  publication,  which  a  party  risl<ed  by  keep- 
in*'  the  libel  in  possession,  than  a  declaration  that  the  keeping  of 
it  in  possession  was  in  itself  a  temporal   crime. 

"With  respect  to  the  Star  Chamber  practice,  that  court  does  nob 
appear  to  have  ever  punished  for  the  mere  possession  of  a  libel ; 
on  the  contrary,  as  will  afterwards  be  noticed,  their  jurisdiction  was 
considered  to  be  doubtful,  even  where  there  had  been  a  publication 
by  sending  a  libel  to  the  party  defamed, — a  doubt  which  never  could 
have  been  entertained,  had  the  power  of  that  court  to  punish  for 
mere  possession,  been  considered  as  clearly  established.  But  this 
offence,  if  it  ever  existed  as  such  against  the  law  of  the  country, 
probably  did  not  survive  the  court  which  created  it. 

An  information  (g)  was  exhibited  against  the  defendant,  for  caus- 
ing to  be  framed,  printed,  and  published,  a  scandalous  libel.     Upon 
evidence  it  appeared,  that  two  printed  libels  had  been  found  at  the 
lodgings  of  the  defendant,  upon  warrants  from  the  principal  Secretary 
of  State  to  search  there.      The  opinion  of  the  court  was,  that  this 
was  no   crime  within  the  information,  though  he   gave 
*no  account  how  they  came  there  ;  and  that  the  having     [  *229  ] 
a  libel  in  possession  without  delivering  it  to  a  magistrate, 
was  punishable  in  the  Star  Chamber  only.      In  the  subsequent  case 
of  the  Kivg  v.  Beare,  Lord  Holt  C.  J.  is  reported  to  have  said, 
that  the  collecting  and  transcribing  of  libels  (/),  for  the  purpose  of 
publishing  them,  is  criminal,  though  no  publication  should  ever  take 
place  ;  since  men  ought  not  to  be  allowed  to  have  such  evil  instru- 
ments in  their  keeping.       But  in  another  report  of  the  same  case, 
the  defendant  having  been  found  guilty  of  writing  and  collecting 
certain  libels,  it  was  said,  that  the  collecting  had  been  better  out  of 
the  case  (</)  ;  and  it  is  clear  that  judgment  was  given  on  the  ground 
that  the  defendant  wrote  the  original  libel,  since  though  Lord  Holt 
intimated  that  the  bare  copjing  of  a  libel  was  criminal,  he  said  there 
was  no  necessity  for  the  opinion,  because  the  defendant  had  been 
found  guilty  of  writing  the  original  (Ji). 

(e)  Vent.  31.    E.  21.  C.  2.     15  Vin.  Ab.  89,  pi.  6.     Dig.  L.  L.  19. 
(/)  Carth.  409.     Holt  R.  422. 
\g)  Salk.  417.     Ld.  Ray.  414, 
\h)  2  Salk.  419. 


229  CRIMINAL  DIVISION. 

Upon  the  different  reports  of  this  case,  Lord  Camden  remarked  i 

"  If  all  tills  be  law,  and  I  have  no  right   at  present  to  deny  it, 

■whenever  a  favourite  libel  is  published,  the  whole  king- 

[  *230  ]     dora  in  a  month  or  two  becomes  criminal,  and  it  would  *be 

difficult   to  find  one  innocent  jury   amongst  so   many 

millions   of  offenders  (i)." 

With  respect  to  the  bare  fact  of  committing  libellous  matter  to 
print  or  writing,  the  nature  of  the  act  appears  to  be  much  more 
doubtful ;  since,  though  it  has  been  expressly  decided  that  the  bare 
act  of  writing,  without  publication,  is  criminal  at  common  law,  the 
grounds  of  that  determination  afford  room  for  doubt. 

Under  the  jurisdiction  of  the  Court  of  Star  Chamber,  some  pub- 
lication appears  to  have  been  held  essential  to  the  completion  of  the 
offence  ;  since  even  in  cases  where  libels  had  been  sent  to  the  indi- 
viduals libelled,  it  was  doubted  whether  the  Court  had  jurisdiction — 
a  question  which  never  could  have  been  raised,  had  the  mere  act  of 
writing  been  sufficient  to  complete  the  offence. 

Thus,  in  the  case  (/s)  of  Dr.  Edwards  and  Dr.  Wooton,  the 
letter  had  been  written  to  Dr.  Edwards  himself,  and  it  was  said, 
that  the  latter  should  be  punished,  (although  it  was 
[  *231  ]  solely  writ  to  the  plaintiff  without  any  other  *publication,) 
in  the  Star  Chanaber,  for  that  it  was  an  offence  to  the 
King,  and  a  great  motive  to  revenge.  And  the  same  question  oc- 
curred in  the  case  of  Barrow  v.  Llewellin  (/),  where  the  letter  had 
been  sent  sealed  to  the  prty,  as  also  in  the  case  of  Sir  Baptist 
Eicks  (rii)  and  no  instance  appears,  in  which  the  Star  Chamber 
punished  for  a  libel  without  some  publication. 

In  the  case  of  Leuis  Pickering  (n),  in  the  Star  Chamber,  the 
defendant  confessed  the  publishing  as  well  as  the  composing  of  the 
libel ;  and  in  the  resolutions  which  are  subjoined  to  the  case,  no 
hint  is  given  that  the  mere  making  of  a  libel  without  a  publication 

(2)11  St.  Tr.  322.  The  case  of  the  King  v.  Rosenstein,  2  C.  &  P.  Ni.  Pri. 
Ca.  414.  Park,  J.  thought  it  higlily  doubtful  whether  the  having  in  possession 
an  obscene  libel  with  intent  to  publish  it  was  an  indictable  offence. 

(k)  12  Co.  35.  5  J.  1. 

(OlHob.  62.     13  J.  1.  (m)  Hob.  215. 

(n)  5  Co.  125.     3  J.  I. 


PUBLICATION.  231 

would  be  punishable  in  that  cowrt :  on  the  contrary,  the  reasons  for 
Tunisliirig  the  offence  of  libellisig  are  cxpounderl,  and  are  such  as 
can  ai'ply  to  those  cases  only  in  -which  a  libil  has  been  actually 
published  :  and  in  the  4th  resolution,  after  the  explanation  givca 
of  the  different  kinds  of  libels,  the  vaiious  modes  of  publication  are 
immediately  specified. 

In  Lamb's  case  (o)  the  bill  vras  exhibited  against  the  defendants 
for  the  publication  of  two  libels  ;  atid  it  was  resth-cd, 
^'  that  every  one  who  "shall  be  convicted  in  the  said     [  "232  ] 
case,  either  ought  to  be   a  contiiver  of  the  libel,  or  a 
procurer   of    the   contriving   of  it,  or  a  raalicious  publisher  of   it, 
knowing  it  to  be  a  libel ;"  the  resolution  then  goes  on  to  expound, 
what  shall  amount  to  a  publication,  and  afterwards  repeats,  that 
every  one  who  shall  be  convictcfl,  ought  to  be  the  contriver,  procurer, 
or  publisher  of  it,  knowing  it  to  be  a  libel.     Upon  the  face  of  this 
resolution  it  appears  to  be  doubful,  whether  the  contriver  and  pro. 
curer  were  considered  as  severally  punishable  for  their  acts,  though 
no  publication  shonld  take  place  ;  or  whether  the  resolution  does 
not  suppose,  in  the  first   place,  that  the  offence  has  been  completed 
by  a  publication,  and  then  proceeds  to  define  what  degree  of  agen- 
cy shall  render  any  party  concerned  responsible  for  the  whole  eff^-'Ct 
produced.     In  favour  of  the  former  constructio.i  it  appears,  that 
the  actors  are  separately  and  disjunctively  enumerated  as  liable  to 
be  convicted  ;  and  this  interpretation  was  adopted  by  L^rd  Holt. 
In  support  of  the  latter  construction,  it  m^.y  be   observed,  that  tha 
words,  "  every  one  who  shall  be  convicted  in  the  said  case,"  refer 
immediately  to  the  case  of  the  defendants,  who  were  prosecuted  for 
puhlishuig  two  libels  ;  that  in  the  subsequent  part  of  the  resolution 
it  is  said,  "  If  the   defendant  write  a  copy  of   a  libel,  and  do  not 
publish  it  to  others,  it  is  no  publication  ;"  which  affords 
some  *reason  for  inferring,  that  a  publication  was  deem-     [  *233  ] 
ed  to  be  in  all  cases  necessary  before  any  conviction  could 
take  place  ;  since   the  passage,  if  understood  in  this  sense,  that  a 
person  who  commits  a  libel  to  writing  is  not  punishable,  unless   ho 
afterwards  publish   it,  is  sensible  and  intelligible  ;   but  if,  on  tho 
other  hand,  tho  coastruciion  be  this,  that  a  person  who  writes  a 

(o)  9  Rep.  59.     8  J.  I. 

Vol,  11.  83 


233  CRIMINAL  DIVISION. 

libel,  but  does  not  publish  it,  is  not  punishable  as  the  publisher, 
but  is  nevertheless  liable  as  the  contriver,  as  was  contended  for  in 
the  case  King  v.  Beare. — then  the  passage  is  a  peace  of  iille  tau- 
tology, and  amounts  to  no  more  than  this,  that  a  person,  who  does 
not  publish  a  hbel  which  he  has  written,  is  not  guilty  of  a  publica- 
tion. The  resolution  afterwards  proceeds  to  say,  "  but  it  is  great  ev- 
idence that  he  published  it,  when  he,  knowing  it  to  be  a  libel,  write:h 
a  copy  of  it."  Upon  which  it  may  be  observed,  that  the  resorting 
to  presumptive  evidence,  by  making  the  act  of  writing  proof  of 
publication,  would  be  nugatory,  if  that  act  of  itself  constituted  a 
distinct  and  substantive  offence. 

Samuel  Paine,  a  minister,  was  tried  upon  an  information  (/>), 
Betting  forth  that  he  was  the  composer,  author,  and  publisher  of  a 
malicious  libel  against  the  late  Queen  Mary,  styled  "  Her 
[  *234  ]  Eptaph."  *The  jury  found,  by  way  of  special  verdict, 
that  a  certain  person,  to  them  unknown,  did  pronounce, 
dictate,  and  repeat  the  words  contained  in  the  libel  which  the  de- 
fendant did  write  ;  and  if  that  will  make  him  guilty  of  the  composing 
and  making  of  the  libel,  then  they  find  him  guilty,  and  as  to  the 
publication,  they  find  him  not  guilty.  After  arL'ument  the  Court  ob- 
Ferved,  "  the  making  of  a  libel  is  an  offence,  thought  never  pub- 
lished;  and  if  one  dictate  and  another  write,  both  are  guilty  of 
making  it ;  to  what  purpose  should  any  one  write  or  copi/  after  an- 
other, but  to  shew  his  approbation  of  the  contents  of  a  libel,  and 
the  better  to  enable  him  to  keep  it  in  his  memory,  and  repeat  the 
contents  of  it  to  others."  The  matter  was,  however,  adjourned, 
and  it  does  not  appear  that  any  judgment  was  given. 

The  defendant  Beare  (q)  was  found  guilty  of  writing  and  coUecU 
ing,  but  acquitted  of  the  making  and  composing  of  several  libels 
stated  in  the  indictment.  Upon  motion  in  arrest  of  judgment,  Holt, 
C.  J.  said,  "  Before  I  come  to  the  objections  against  the  verdict,  I 
shall  consider  whether  it  be  not  criminal  to  ivrite  a  libel, 
[  *235  ]  although  a  man  be  not  the  composer  or  contriver  *there- 
of."     The  learned  judge  observed,  that  it  is  the  putting 

(p)  5  Mod.  163.  1   Salk.  281.  Comb.  358.  Garth.  405.  1  Ld.  Ray.  729.  Holt, 
294. 

{q)  Ld.  Ray.  417.     Garth.  409.  12  Mod.  219.     2  Salk.  417. 


PUBLICATION.  235 

of  the  words  into  writing,  which  is  the  essence  of  the  offence  ;  for 
the   party  is  not  guilty  unless  he  put  the  words  into  writing ;  and 
that  in  all  cases  where  a  man  does  an  act,  which  act  causes  the  thing 
to  be  what  it  is,  such  an  one  is  to  be  considered  the  doer  of  it ;  that 
in  all  lower  offences  procurers  are  principals,  so  that  if  A.  hold  B. 
whilst  C.  beats  him,  A.  is  guilty  of  the  battery  ;  that  Lamb's  case 
was  to  be  expounded  by  the  same  case  in  Moor  (r),  in  which  it  was 
reported  to  have  been  resolved,  that  the  writer  of  a  libel  is,  in  law, 
the  contriver  ;  but  that  in  Lamb's  case  the  question  was  not  concern- 
ing the  writing  or  making,  but  about  the  pubhcation  thereof,  and  it 
was  held,  that  the  writing  of  a  copy  of  a  Ubel,  as  indeed  the  writing 
of  the  original  libel  itself,  is  no  publication  thereof,  but  only  an  evi^ 
dence  of  publication  ;  that  the  question  was  not  how  far  the  writing 
of  a  libel    was  criminal,  but  whether  the  writing  of  a  copy  be  a 
publication,  which  indeed  it  is  not  ;  that  the  case  oi  John  De  North 
ampton  is  apposite,  who  was  charged  with  writing  only,  Avithout  any 
mention  made  of  publication,  and  who  confessed  the  writing  only. 
The  learned  judge  also  expressed  his  opinion,  that  the 
copying  of  a  libel  was  a  libel,  *because  it  comprehends     [  *236  ] 
all  that  is  necessary  to  make  it  a  libel,  the  same  scandal- 
ous matter,  and  the  same  mischievous  consequences  ;  since  it  is  by 
this  means  perpetuated,  and  may  come  to  the  hands  of  other  men, 
and  be   published  after  the  death  of  the  copier ;  and  that  if  men- 
might  take  copies  of  them  with  impunity,  then  the  printing  of  them 
would  be  no  offence,  and  then  farewell  to  government. 

Turton  and  Rokeby,  Justices,  were  of  the  same  opinion,  and  re- 
ferred to  several  cases  (s),  to  prove  that  writing  a  libel  without  pub** 
lishing  it,  was  punishable  in  the  Star  Chamber. 

The  parallel  drawn  by  Lord  Holt,  in  the  above  case,  seems  to  bo 
objectionable,  since  it  assumes  the  offence  to  have  been  completed. 
If  A.  hold  B.  whilst  C.  beats  him,  A.  is  guilty  of  the  beating,  bub 
the  offence,  that  is,  the  battery,  here  is  completed  ;  to  suppose  then, 
that  the  case  in  question  is  analogous  to  it,  is  to  assume  that  the  of- 
fence of  li!)elling  is  complete  without  a  publication  ;  the  question  was 
not  whether  an  aider  or  abettor  to  an  offence  actually  committed  was 
punishable  as  a  principal,  but  whether  any  offence  had  in  fact  been 

(r)  813.  (5)  Hob.  62,  215.     12  Co.  35. 


237  CRIMINAL  DIVISION. 

consummated,  or  the  -whole  rested  in  mere  intent  and 
[  *237  ]  preparation,  as  if  A.  had  supplied  'C.  with  a  stick  for 
the  purpose  of  beating  B.,  but  no  battery  had  actually 
taken  place. 

Neiiher  do  the  cases  relied  upon  appear  to  be  applicable  :  in  that 
of  John  De  Northampton  (0  it  is  stated,  that  the  letter  was  wriften 
to  John  Ferrers,  one  of  the  King's  counsel ;  and  the  confession  runs 
thus  :  "  JSt  quia  prcedictus  Johannes  cognoscit  dictam  literam  per  se 
scriptam  Roberto  de  Ferrers  ^c.  ;"  now  if  "  written  to"  merely  im- 
ported the  address  of  the  letter,  which  never  passed  from  the  de- 
fendant, there  was  no  occasion  to  confess  the  writing  of  it  to  Robert 
de  Ferrers,  and  the  very  same  terms  "  written  to"  are  used  by  Sir 
E.  Coke,  in  his  12 ih  Report,  to  imply  a  sending  as  well  as  writ- 
ing. 

The  cases  cited  by  Turton  and  Rokeby  (u).  Justices,  are  inappli- 
cable ;  since  in  those  instances  there  was  a  pullication  of  the  libel 
to  the  party  defamed. 

Knell  (x)  was  tried  upon  an  information  charging  him  with  having 
printed  and  published  a  libel,  entitled  "  Mist's  Weekly  Journal." 
Il  was  proved  that  the  defendant  was  a  pi  inter's  servant,  and  his 
business  was  to  prepare  the  type  for  printing  cfF,  which 
[  *238  ]  business  was  called  composing  *ior  the  press  ;  that  the  de- 
fendant and  another  composed  together  the  libel  in  ques- 
tion, taking  the  alternate  columns.  For  the  defendant  it  was  olject- 
ed,  1.  that  since  the  defendant  took  a  distinct  part,  that  which  ho 
composed  could  not  bear  the  construction  put  upon  the  whole  ;  and 
2dly,  that  since  he  composed  only,  he  could  not  be  found  guilty  of 
the  printing  wherewith  he  was  charged.  It  was  answered  that,  in 
misdemeanors,  an  accessory  in  part  is  a  principal  in  the  whole,  and, 
therefore,  as  the  defendant  assisted  in  the  coaiposing,  a  circumstance 
essential  to  the  printing,  he,  by,  that  act,  made  himself  concerned 
in  the  whole ;  that  composing  was  taking  a  copy  in  types,  which 
Tvould  make  the  defendant  a  publisher,  since  it  had  often  been  deter- 
mined that  tlie  taking  of  a  copy  of  a  libel  was  an  act  of  pubhcation. 
But  the  Chief  Justice  directed  the  jury  to  acquit  the  defendant  of 

(0  3  Ins.  174.  (u)  Hob.  62,  215.     12  Co.  35. 

\x)  Hill  3.  G.  9.     Barnard.  K.  B.  SOS.    D.  L.  L.  25, 


PUBLICATION.  238 

the  publication,  and  if  they  believed  the  evidence,  to  find  him  guilty 
of  tlie  printing,  which  they  did  accordingly  (?/). 

*Upon  the  whole,  whatever  doubt  miy  exist  as  to  the  [  •239  ] 
criminal  nature  of  the  act,  wliere  it  is  confined  to  the  mere 
writing,  priming,  or  preserving  of  a  libel,  it  seems  to  be  perfectly 
clear  that  every  person  who  maliciously  lends  his  aid  to  the  con- 
struction of  alibel,  subsequently  published,  or  who  contributes  to  the 
publication  of  one  already  made,  wiih  a  knowledge  of  its  contents,  is 
indictable  as  a  principal  for  the  whole  mischief  produced. 

And  according  to  the  doctrine  laid  down  in  Lamb's  case  (2),  where 
a  libel  has  been  published,  proof  that  the  defendant  committed  it  to 
writing,  or,  by  parity  of  reasoning,  did  any  other  act  contributing  to 
its  existence,  is  great  evidence  that  he  published  it,  unless  he  can  sa- 
tisfactorily explain  the  motive  of  his  act. 

(y)  The  defendant  was  afterwards  sentenced  to  stand  upon  the  pillory  fwica 
and  to  be  kept  to  hard  labour  in  Pridewell  for  the  space  of  six  months.  D.  L. 
L.  124.  Ill  Sir  Francis  Burc/iU's  case,  Ilolroyd,  J.  expressed  an  opinion  ihat 
the  composing  and  writinjj  of  a  libel  with  the  intent  afterwards  to  publish  it, 
amounted  to  a  misdemeanor.  In  that  case  there  was  an  actual  subsequent  pub- 
lication by  the  defendant,  and  it  was  held,  by  a  majority  of  the  Judges,  that 
there  was  a  sufficient  publication  within  the  county  where  the  defendant  had 
composed  and  written  the  libel. 

(2)  9  Co.  59. 


CHAPTER   XII. 


Op  the  Defendant's  Intention,  and  Collateral  Cir- 
cumstances. 

[  *240  ]         'After  the  observations  which  have  already  been  so 
frequently  made  on  the  subject  oUntention,  little  remains 
to  be  said. 

In  point  as  well  of  frincijle  as  of  precedent,  malice  is  essential  to 
the  offence  constituted   by  any  illegal  communication  (nr). 

This,  however,  considered  as  an  universal  rule,  must  be  understood 
of  raal  ce  in  its  legal  and  technical  sense,  as  denoting  in  cases  where 
the  act  itself  is  injurious  and  unlawful,  the  absence  of  legal  excuse  ; 
for  in  the  failure  of  circumstances  which  justify,  excuse,  or  at  least 
modify  tie  act,  a  rational  being  must,  in  law  as  well  as  morals,  bo 
taken  to  contemplate  and  intend  the  immediate  and  natural  conse- 
quences of  his  act. 
[  *241  ]  'Where  a  party  is  instrumental  to  a  publication  of  that 
which  is  noxious  and  illegal,  without  any  moral  blame  im- 
putable to  himself,  he  cannot  be  criminally,  even  although  he  may 
be  civilly  responsible. 

A  lunatic  or  madman,  incapable  of  distinguishing  between  right 
and  wrong,  is  not  a  fit  object  of  penal  visitation  [IJ,  neither  is  a 

(a)  See  Haw.  PI.  C.  c.  73,  s.  1.  5.  Co.  125.  5,  Mod.  166.  Salk.  418.  4  Bl. 
Comm.  125,  150.  As  malice  is  necessary  in  ordei  to  constitute  civil  responsi- 
bility, supra  vol.  I.,  p.  209,  210,  a  fortioii  it  is  essential  to  make  a  parly  crim- 
inally amenable. 

[I]  Insanity  has  been  held  a  good  defence  in  an  action  for  words.  Dickinson 
u.  Barber,  9  Mass.  R.  225.     See  also  Horner  v.  Maxshall's  admx.  5  Munf.  466* 


INTENTION.  241 

party  punishable  who  publishes  a  libel  without  knowlcrlge  of  its  con- 
tents, providfcl  his  ignorance  were  not  in  itself  culpable  :  as  vhero 
a  servant  delivers  a  scaled  letter  ^Yitll0ut  knowledge  of  its  libellous 
quality,  in  obedience  to  the  command  of  his  master,  and  wiihout 
any  rea?on  for  supposing  the  order  to  be  illegal. 

But  where  the  act  is  knowingly  and  intentionally  done,  it  is  plain 
that  the  mere  absence  of  an  actual  intention  to  injure  cannot  absolve 
from  criminal  responsibility,  when   circumstances  are  wanting  which 
the  law  recotrnizes  as  supplying  an  absolute  or  modified  justifiL-ation. 
"Where  an  act  is  voluntary,  injurious  in  its  tendency,  and  illegal  in  its 
quahty,  it  would  be  contrary  to  all  legal  princi[  le  and  analo^^y  to  allow 
the  offender  to  justify  or  excuse  himself,  eiiher  on  the  ground  that  ho 
mistook  the  law,  or  that  he  offended  against  the  law  with  such  good 
motives  as  ought  to  excuse  him.     To  allow  the  plea  of  mistake 
would  be  to  confer  a  premium  upon  ignorance,  'and  af- 
ford an  excuse  for  every   \  ossible  enormity ;   to  allow     [  '242  ] 
every  man  to  set  up  his  own   crude  opinions  against  the 
wisdom  of  the  law,  would  be  at  once  to  overthrow  the  law,  as  an  uni- 
versal rule  of  conduct ;  there  is  no  law  when  obedience  is  merely 

oj'tional. 

The  same  principles  apply,  where  a  man  negligently  and  heed- 
lessly does  an  injurious  and  mischievous  act,  without  using  pro)  er 
caution  :  gross  inattention  to  the  interests  of  others  is  morally  as  well 
as  legally  speaking,  sufficient  to  render  the  offending  party  amenable 
for  the  consequences  (6). 

(b)  Tt  is  unnecessary  to  cite  authorities  to  show  that,  in  numerous  instarres 
of  criminal  responsibility,  an  actual  i:ilenlion  lo  injure  is  not  material,  and  that 
ll,e  wilful  doing  of  a  noxious  act,  or  the  uiiful  omi.sion  of  a  legal  obligation,  is 
Bufficient  to  constitute  criminal  refponsibility. 

There  is,  it  is  true,  a  disiinction  between  civil  and  criminal  responsibility  in 
respect  of  the  agents  understanding  and  knowledge  of  consequences  ;  one  who 
^•as  so  defective,  in  point  of  understanding,  as  to  be  unable  to  di.Ungmsh  be- 
tween  right  and  wrong,  would  not  be  criminally  though  he  would  be  civilly  le- 
sponsil)le  for  the  consequences  of  his  act.  .     ,  •  i,  :„ 

And  where  one  who  can  distinguish  right  from  wrong,  does  an  act  which  m 
itself  IS  unlawful,  but  does  it  through  mistake  or  ignorance,  but  without  any 
blame  even  of  negligence  or  carelessness,  he  is  not  criminally  ^^^P""^  "^ '  " 
lereanrarrhashad  poison  delivered  to  him  when  he  asked  for  wholesome 


243  CRIMINAL  DIVISION. 

*In  the  case  of  the  King  v.  Harvey  (c),  which  was  one  of  an 
information  against  the  defendant  for  falsely  arid  malici- 
[  *243  ]  ously  puldishin^  a  libel,  asserting  that  the  King  was  af- 
flicted with  mental  deran;^ement,  the  jury,  having  inqui- 
red from  the  Court  whether,  in  order  to  convict  a  defendant  fur  the 
publication  of  a  libel,  a  malicious  intention  must  not  have  existed  in 
his  mind,  the  Chief  Justice  answered,  that  a  person  who  publishes 
that  which  is  cakiranious,  concerning  the  character  of  another,  must 
be  presumed  to  have  intended  to  do  that  which  the  publication  is  neces- 
sarily and  obviously  calculated  to  eifect,  unless  he  can  shew  the  contra' 
ry,  and  the  onus  of  proving  the  'contrary  lies  upon  him. 
[  '244  ]  And  in  the  case  of  the  King  v.  Sir  Francis  Bardett  (e), 
where  the  publication  alleged  that  divers  liege  subjects 
of  the  king  had  been  inhumanly  cut  down,  maimed,  and  killed,  by 
certain  troops  of  the  king,  the  learned  judge,  in  suaiming  up,  in- 
formed the  jury  that  the  intention  was  to  be  collected  frcm  the  paper 
itself,  unless  explained  by  the  mode  of  publication  or  other  circumstan- 
ces, and  that  if  its  contents  were  likely  to  excite  sedition,  the  defend- 
ant must  be  presumed  to  intend  that  which  his  act  is  likely  to  produce. 

The  question  therefore  arises,  what  circumstances  does  the  law 
regard  as  affording  either  an  absolute  justification,  independendy 
of  the  actual  intention  of  the  publisher,  or  a  qualified  or  modified 
justlfioalion  dependent  on  the  absence  or  existence  of  malice  in  fact. 

What  circumstances  then  afford  an  absolute  justification  independ- 
ently of  intention  ? 

medicine,  and  supposing  it  to  be  the  latter,  administers  it  to  another.  But  it  is 
ignorance  of  the  act  and  its  consfquences  which  absolves  fronn  guilt ;  and  even 
ignorance  of  the  nature  of  the  act  and  its  probable  consequences  will  not  ab- 
solve, except  in  the  absence  of  all  carelessness,  negligence,  and  inattention.  If 
a  chemist  or  apothecary  were  even  by  mistake,  yet  in  consequence  of  negligence 
and  inattention,  to  administer  poison  instead  of  medicine,  he  would  be  criminal- 
ly liable  for  the  consequences. 

And  ignorance  to  excuse  from  penal  censure  must  be  ignorance  in  fact  and 
not  ignoiance  of  law.  Thus,  though  a  person  who  without  any  negligence 
administered  poisim  instead  of  medicine  would  be  excusable  for  want  of  know- 
ledge of  the  fact,  yet  if  he  were  voluntarily  to  destroy  one  who  was  excom- 
municated or  outlawed,  he  would  be  guilty  of  murder,  although  he  ignoranily 
supposed  that  he  was  bound  to  kill  him  when  he  met  him. 

(c)  R.  V.  Harvey,  2  B.  &  C.  257.  (g)  R.  «.  Burdett,  4  B.  &  A.  95. 


JUSTIFICATION.  245 

The  same  principles  of  policy  and  convenience  ■which  have  been 
already  observed  upon  in  reference  to  justifications  in  civil  actions, 
apply  also,  for  the  most  part,  (but  with  one  striking  exception,)  to 
ciiminal  prosecutions. 

Whenever  it  happens  that  the  law,  for  the  sake  'of  ex-     [  '245  ] 
eluding  some  greater  degree  of  inconvenience,  deprives 
individuals  of  their  remedy  by  action,  -without  regard  to  the  mischief 
occasioned,  or  the  malice  of  the  author,  the  same  reasons  or.linarily 
exclude  a  criminal  prosecution,  which  would  usually   produce  the 
same  kind  of  inconvenience  even  to  a  greater  extent.      Hence  it  is 
that  no  one  is  criminally  responsible  in  respect  of  any  publication 
duly  made  in  the  ordinary  course  of  any  parliamentary  or  judicial 
proceeding.     Thus,  as  has  already  been  observed,  in  reference  to 
the  civil  remedy,  no  member  of  either  House  is  responsible  in  a 
court  of  justice  for  any  thing  said  in  that  House,  and  in  such  cases, 
to  use  the  words  of  Lord  Kenyon  (/),  courts  of  law  possess  no 
jurisdiction. 

The  immunity,  which  the  law  for  wise  considerations  thus  extends 
to  publications  made  in  the  ordinary  course  of  parliamentary  or 
judicial  proceedings,  is  confined  to  such  as  are  warranted  by  the  oc- 
casion. If  a  member  of  either  House  of  parliament  publish  his 
speech  beyond  the  walls  of  the  House,  he  can  claim  no  privilege, 
but  stands  precisely  in  the  same  situation  with  any  other  per- 
son (^). 

•In  the  case  of  the  King  v.  Creevey  (Zi),  it  was  held  [  '246  ] 
that  a  member  of  the  House  of  Commons  was  liable  to  be 
convicted  on  an  indictment  for  a  libel  on  the  character  of  an  indi- 
vidual,  although  the  publication  was  a  correct  report  of  a  speech 
made  by  the  defendant  in  the  House  of  Commons,  and  had  beea 
published  by  him  in  consequence  of  an  incorrect  report  having  beea 
published  in  other  newspapers. 

So  it  is  also  clear  that  if  any  party  to  a  judicial  proceeding  were 
to  be  guilty  of  any  publication  of  defamatory  matter,  which  was  ex- 

(/ )  R.  V.  Ld.  Abingdon,  1  Esp.  C.  226,  supra  vol.  I.  p.  '^39  ;  see  also  the 
King  V.  Wright,  8  T.  R.  293,  supra  vol.  I.  p.  257. 

(^)  R.  V.  Ld.  Abingdon,  1  Esp.  C.  226.     R.  v.  Creevey,  1  M.  &  S.  273. 
(A)  IM.  &S.273. 

Vol.  II.  84 


247  CRIMINAL  DIVISION. 

trajudicial  and  not  warranted  by  the  ordinary  course  of  proceeding, 
he  could  derive  no  jasiification  or  excuse  from  the  occasion. 

In  the  case  of  the  King  v.  Saihhury  (i),  it  was  held  that  it  was 
indictable  to  publish  a  scandalous  petition  to  the  House  of  Lords, 
or  a  scandalous  affidavit  made  in  a  court  of  justice. 

As  one  who  faithfully  reports  judicial  proceedings  is  not  civilly, 
80  neither  is  he  criminally  responsible  ;  the  same  reason  which  ex- 
cludes an  action  in  the  one  case,  repels  a  prosecution  in  the  other  ; 
although  the    characters   of  individuals   may    casually 
[  *247  ]     suffer  from  the  publicity  of  such  'proceedings,  a  superior 
degree  of  benefit  arises  to  the  public  at  large. 

It  is  a  matter  of  public  policy  not  only  that  the  mode  of  ad- 
ministering justice  should  be  known  to  all,  but  also  that  the  condem- 
nation of  offenders  against  the  law  should  be  publicly  announced  ; 
for  the  conviction  of  any  member  of  society  of  a  crime,  in  many 
respects  operates  in  rem ;  it  affects  the  state  and  situation  of  the 
individual  as  a  member  of  society,  and  therefore  the  public  have  an 
interest  in  knowing  the  fact.  It  has  even  been  held,  that  every  one 
was  bound  to  take  notice  of  an  attainder  in  the  county  where  he 
lived  (Jc).  It  seems  that  to  publish  even  by  writing  or  print,  ac- 
cording to  the  truth,  that  a  party  has  been  convicted  of  a  crime,  is 
a  good  justification  to  a  criminal  charge,  as  well  as  in  a  civil  action. 

It  has  already  been  seen  (Z)  that  the  principle  on   which  this  im- 
portant privilege  is  founded  is  limited  both  in  respect  of  the  subject 
matter  reported,  and  of  the  manner  in  which  it  is  reported. 
[  *24.8  ]     As  the  authorities  on  this  subject  have  alredy  *been  notic- 
ed, it  is  unnesessary  again  to  cite  them. 

And  next  it  has  been  seen  that  it  is,  under  some  modifications,  a 
good  defence  to  an  action  to  shew  that  the  defendant,  at  the  time 
of  the  publication,  gave  such  a  description  of  the  author  of  the 
slander,  and  the  words  he  used,  as  would  enable  the  plaintiff  to 
recover  against  him.     And  it  seems  that,  according  to  the  ancient 

(j)  1  Ld.  Ray.  341  ;  vide  supra  vol.  I,  p.  253,  326. 

(A)  3  P.  W.  494.  Staunf.  96.  8.  c.  4,  f.  3,  and,  therefore,  it  has  been  said 
that,  on  an  indictment  against  one  as  an  accessory  after  the  fact  in  harbouring 
a  felon,  an  attainder  of  the  principal,  within  the  county,  was  proof  of  the  pre- 
■vious  knowledge  of  the  attainder.  {I)  Vol.  I.  p.  263. 


JUSTIFICATION.  218 

law,  the  surrendering  the  author  was  sufficient  to  exempt  a  party 
who  republished  the  slander  from  punishment.  It  appears,  from  tho 
statutes  of  Scandalum  Magnatum,  that  no  punishment  was  to  be 
inflicted  in  case  the  defendant  gave  up  the  author  of  the  false  tale, 
and  that  the  imprisonment,  even  after  conviction,  was  to  cease  upon 
the  offender's  discovering  the  first  mover  of  slander  (m). 

It  does  not,  however,  appear  that  such  a  defence  to  an  indictment 
at  common  law  has  ever  been  allowed ;  nor  could  it  in  principle  bo 
admitted  (??),  since  the  law  regards  not  the  truth  or  falsity  of  the 
libel,  but  only  its  tendency  to  provoke  and  injure  ;  and,  therefore, 
where  the  matter  is  noxious  and  injurious,  and  immedi- 
ately tends  to  a  "breach  of  the  peace,  the  publisher  cannot  [  *249  ] 
be  allowed  to  protect  himself  by  the  plea  that  he  was  not 
the  author  of  the  scandalous  matter,  but,  on  the  contrary,  that  at 
the  time  of  publication  he  truly  declared  who  the  author  was  [1]. 
Bat  it  is  to  be  observed,  that  the  making  such  a  disclosure,  at  the 
time  of  publication,  may  be  material  ?.s  evidence  to  rebut  the  infer- 
ence of  malice,  which  would  otherwise  arise  from  the  contents  of  the 
libel  itself:  as,  for  instance,  if  a  party  to  whom  a  libel  was  published 
shewed  it  to  the  person  reflected  on,  with  a  bona  fide  intention  of 
giving  him  an  opportunity  for  making  an  explanation  which  the 
other  was  entitled  to  demand,  or  with  a  friendly  intention  to  enable 
him  to  exculpate  himself  or  seek  his  legal  remedy. 

And  even  a  subsequent  disclosure  is  usually  regarded  as  a  cir- 
cumstance to  be  considered  in  mitigation,  where  the  fact  of  pubUca- 
tion  cannot  be  justified.  It  is  usually  more  material  to  the  party 
aggrieved  to  identify  the  anonymous  and  secret  assailant  of  his  rep- 
utation, whether  it  be  for  the  purpose  of  civil  redress  or  future  safety, 
than  to  punish  the  mere  instrument  of  his  malice  ;  and  such  a  re- 
paration, though  it  be  tardy,  is  frequently  the  only  one  in  the  power 
of  the  offending  party. 

(m)  Vol.  I.  p.  176. 

(n)  If  a  highwayman  shall  at  the  gallows  arraign  the  justice  of  the  law  and 
of  those  who  condemned  him,  he  who  publishes  shall  not  go  unpunished.  4 
Read.  St.  Law,  154.  Dig.  L.  L.  32. 

[1]  See  Vol.  I.  p.  340,  note  [1]  as  to  the  effect  of  disclosing  the  name  of  the 
autlior  of  the  slander,  even  in  a  civil  action. 


250  CRIMINAL  DIVISION. 

[  *250  ]  It  is  now  to  be  observed  that  there  is  one  great  'dis- 
tinction (which  has  ah-eady  been  alluded  to,)  between 
justifications  in  civil  and  criminal  proceedings  ;  in  the  latter  the 
truth  is  not,  as  in  the  former,  a  ground  of  justification.  It  has  al- 
ready been  seen  that  the  truth  is  a  justification  in  a  civil  action,  net 
solely  on  grounds  of  extrinsic  and  collateral  policy,  but  also  because 
the  very  foundation  fails  on  Avhich  the  claim  to  damages  might  other- 
"wise  be  erected,  that  foundation  being  i\vQ  falsity  of  the  defamatory* 
charge  (o).  On  the  other  hand,  the  tendency  of  the  defamation  to 
produce  a  breach  of  the  peace,  is  of  the  essence  of  the  offence,  as 
far  as  the  public  are  concerned  ;  and,  therefore,  the  truth  or  falsity 
of  the  publication  is  collateral  to  the  offence — the  imputation,  it  is 
obvious,  may  be  not  the  less  provoking  because  it  is  true. 

As  it  is  essential  to  prohibit  all  direct  incitements  and  provoca- 
tions to  break  the  peace  of  society,  by  acts  of  violence  and  outrage, 
so  also  is  it  necessary  to  provide  against  indirect  provocations,  which 
are  not  distinguishable  from  more  direct  attempts  either  in  point  of 
motive  or  of  mischievous  results. 

If  a  party  were  to  send  a  letter  to  another,  directly  soliciting  him 
to  commit  a  breach  of  the  peace,  no  one  could  doubt  tha 
[  *251  ]  criminality  of  the  *act.  Were  the  writer  to  go  further 
and  specify  some  wicked  or  dishonourable  act,  as  the 
ground  of  challenge,  or  to  use  expressions  of  contempt  or  abuse  cal- 
culated to  excite  irritation,  and  to  occasion  the  party  addressed  to 
comply  with  the  request,  it  would  readily  be  admitted  that  the  state 
of  the  case  would  not  be  altered  for  the  better,  and  even  though  the 
writer  omitted  the  direct  request,  but  used  expressions  just  as  likely 
to  produce  the  same  result,  it  would  be  difficult  to  contend  that  the 
case  was  altered,  either  in  point  of  intention  or  of  probable  conse- 
quences. 

At  all  events,  therefore,  the  law  is  not  inconsistent  in  admitting 
such  a  justification  in  answer  to  a  claim  for  compensation  in  dama- 
ges, at  the  suit  of  a  guilty  party,  and  in  rejecting  the  same  justifi- 
cation  on  a  prosecution  for  the  benefit  and  security  of  the  public 
at  large. 

(o)  See  the  Preliminary  Discourse,  and  supra  vol.  I.  p.  229. 


JUSTIFICATION.  251 

Some  remarks  on  the  policy  of  admitting  such  a  justification  on 
a  criminal  charge  have  been  mide  in  another  place  (p). 

Whatever  may  have   been  the  ancient  rale  of  law  upon  the  sub- 
ject, on  this  occasion  it  may  be  sufficient  to  state  what  the  law  of 
England   at  present  is  on  this  point;    it  has  now  long 
been  settled,  that  the  truth  of   a  libel  on  an  *individ-     [  'SSS  ] 
ual  is  no  defence   to  a  criminal  information  or  indict- 
ment (5)  [1]. 

(p)  See  Preliminary  Discourse. 

(7)  According  lo  the  4lh  resolution,  in  the  case  De  Libellis  Famosis,  5  Co. 
125,  "  It  is  not  material  whether  the  libel  be  true  or  whether  the  party  against 
whom  it  is  made  be  of  good  or  ill  fame,  for  in  a  settled  state  of  government 
the  party  grieved  ought  to  complain  for  every  injury  done  him  in  an  ordinary 
couise  of  law,  and  not  by  any  means  to  revenge  himself  either  by  the  odious 
course  of  libelling  or  otherwise  ;  he  who  kills  a  man  with  his  sword  in  a  fight 
is  a  great  offender,  but  he  is  a  greater  offender  who  poisons  another ;  for  in  the 
one  case  he  who  is  openly  assaulted  may  defend  himself,  and  knows  his  ad- 
versary, and  may  endeavour  to  prevent  it ;  but  poisoning  may  be  done  so  secretly 
that  none  can  defend  himself  against  it,  for  which  cause  the  offence  is  more 
dangerous,  because  the  offender  cannot  easily  be  known." 

The  only  authority  ciied  by  Lord  Coke  is  that  of  Lake  r.  Hatton,  ILibart 
252,  where  it  was  ruled  by  Hobart,  L..C.  J.  in  the  Star  Chamber,  that  a  libel 
cannot  be  justified,  though  the  contents  be  true. 

In  an  anonymous  case,  11  Mod.  99,  an  action  was  brought  for  a  libel  ;  Holt, 
C.'  J.  said,  a  man  may  justify  in  an  action  on  the  case  for  words  for  a  libel ; 
otherwise  in  an  indictment. 

In  the  King  v.  Bickerton,  Str.  468,  upon  a  motion  for  a  criminal  information 
the  chief  justice  declared  that  though  truth  be  no  jus/ijicalion  for  a  l.bcl,  as 
it  is  for  drfamatory  words,  yet  it  will  be  sufficient  cause  to  prevent  the  extraor- 
dinary interposition  of  the  court. 

Lord  Coke  gravely  asserts  that  there  are  certain  marks  by  which  a  libeller 
may  be  known,  "quia  tria  sequuntur  defamatorem,  famosum  ;  1  Pravi/at.s 
incrementum,  increase  of  lewdness  ;  2  Bursm  dccremmNm,  decrease  of  money 
and  beggary  ;  3  ConsaniicE  delrimenlum,  shipwreck  of  conscience." 

[1]  In  New-York,  \\\e  law  is  otherwise.  There  the /rw^/t  is  a  defence  to  an 
indictment,  provided  it  be  made  to  appear  that  the  matter  charged  as  libellous 
was  published  with  gjod  motives  and  for  justifiable  ends.  A  declaratory  act 
was  passed  by  the  Legislature  in  1805,  whereby  it  is  provided  "  that  in  every 
prosecution  fur  writing  or  publishing  any  libel,  it  shall  be  lawful  for  the  defend- 
ant, upon  the  trial  of  the  cause,  to  give  in  evidence,  tn  his  defence,  the  truth 
of  the  matter  contained   in  the  publication  charged  as  libellous  :  Provided  al- 


252  CRIMINAL  DIVISION. 

The  law  to  this  effect  being  clearly  established,  it  would  be  su- 
perfluous  to  enquire,  in  this  place,  whether,  on  general  principles 

ways  that  such  evidence  shall  not  be  a  justification,  unless  on  the  trial  it  shall 
be  futlher  made  satisfactorily  to  appear,  that  the  matter  chaiged  as  libellous 
was  published  with  good  mocives  and  iot  jiislifiible  ends.  Slatules  if  N.  Y,  Mh 
vol.  Wtbster  df  Skinner's  cd.  ch.  90,  f.  232.  This  act  was  passed  in  conse- 
quence of  the  doctrines  held  on  the  trial  of  the  fimous  case  of  The  People  v. 
Croswell,  in  which  the  distinguished  Alex.\nder  HAiirLTON  appeared  as  the  a<l- 
vocate  of  the  liberty  of  the  press.  Croswell  was  indicted  for  a  libel  on  Thomas 
Jefferson,  then  President  of  the  United  States  and  convicted  by  the  verdict  of  the 
jury,  lie  applied  to  the  Supreme  Court  for  a  new  trial,  and  the  principal 
questions  submitted  by  counsel  and  passed  upon  by  the  court,  were  :  I.  On  the 
trial  of  an  indictment  for  a  libel,  can  the  defendant  give  the  truth  in  evidence  ? 
and  II.  Have  the  jury  the  right  to  decide  both  the  law  and  the  facL  ?  Justices 
Kent  and  Thompson  held  the  offtrmalive  upon  both  these  questions,  and  Chief 
Justice  Lewis  and  Livingston  the  negative.  The  case  was  argued  in  February, 
1804.  At  the  succeeding  May  term,  the  Chief  Justice  announced  that  the 
court  were  equally  divided,  in  consequence  of  being  temporarily  composed  of 
only  four  judges,  and  thai  the  public  prosecutor  was  entitled  to  move  for  judg- 
ment. No  motion  was  however  made,  probably  because  on  the  last  day  of  the 
session  of  ihe  legislature  in  April  1804,  a  bill  entitled  "  An  act  relative  to  libels  " 
had  been  passed  by  both  houses,  and  delivered  to  the  Council  of  Revision,  who 
retained  it  at  the  time  of  the  decision  of  that  case,  and  with  whom  it  remained 
until  the  session  of  1805,  when  it  was  sent  back  with  objections.  The  principal 
objection  was  that  it  did  not  contain  a  restriction  similar  to  that  incorporated  ia 
the  act  as  finally  adopted,  viz  :  that  the  truth  should  be  no  justification  unless  it 
should  be  satisfactorily  shewn  that  the  matter  charged  as  libellous  was  publish- 
ed with  good  motives  and  fur  justifiable  ends.  The  legislature  acquiesced,  and 
an  act  containing  that  provision  was  accordingly  passed.  The  People  v.  Cros- 
well, 3  Johns.  Ca3.  337,  et  ssq.  The  principle  of  which  was  subsequently  in- 
corporated into  the  Bill  of  Rights,  1  Revised  Statutes  94,  §  21,  and  also  into 
the  amended  Constitution  of  1821,  Art.  7,  §  8.  In  the  amended  Constitu- 
tion of  New-York  adopted  in  1846,  the  same  provisions  were  inserted  in  nearly 
the  same  words,  viz  :  "In  all  criminal  prosecutions  or  indictments  for  libels, 
the  truth  may  be  given  in  evidence  to  the  jury  ;  and  if  it  shall  appear  to  the 
jury  that  the  matter  charged  as  libellous  is  true,  and  was  published  with  good 
motives  and  for  justifiable  ends,  the  party  shall  be  acquitted  ;  and  the  jury  shall 
have  the  right  to  determine  the  law  and  the  fact."  See  Laws  of  New- York  of 
1847,  p.  386. 

Similar  provisions  in  respect  to  the  truth  and  the  motives  of  publication  are 
contained  in  the  constitutions  of  JMississippi  and  Michigan.  The  language  of 
the  constitution  of  Pennsylvania  in  this  respect  is  different.  It  authorizes  the 
truth  to  be  given  in  evidence,  and  empowers  the  jury  to  determine  the  law  and 


JUSTIFICATION.  252 

of  policy  and  convenience  a  diflferent  rule  might  not  be  adopted  in 
order  to  avoid  the  mischief  of  suppressinj;  the  wholesome  diffusion  of 
truth,  and  such  a  knowledge  of  the  habits  and  characters  of  indi- 
viduals as  is  essential  to  the  interests  of  society.  It 
may,  however,  be  observed,  in  the  first  place,  that  'with-  [  '253  ] 
out  going  the  length  of  sanctioning  the  publication  of 
truth,  regardless  either  of  motive,  occasion  or  consequences,  great 
latitude  is  allowed  in  consideration  of  the  convenience  of  society, 
and  that  such  coLnmunications  seem  to  be  privileged  whenever  they 
arc  fairly  warranted  by  anj;  reasonable  occasion  or  exigency  ;  that 
the  penal  restraint  against  publishing  the  truth  does  not  extend  to 
the  creating  any  civil  liability,  nor,  in  general,  to  oral  communlca- 

the  fact  in  prosecutions  for  the  publication  of  papers  investigating  the  official 
conduct  of  officers  or  men  in  public  stations,  or  where  the  matter  piil)lishe(i  is 
proper  for  public  information.  The  provision  in  the  constitutions  of  Kentucky, 
Illinois,  Delaware,  Ohio,  Indiana,  and  Arkansas,  is  the  same  as  that  of  Penn- 
sylvania, and  so  is  the  provision  in  the  constitution  of  Maine,  except  that  it  ex- 
tends to  publications  respeclino-  candidates  as  well  as  to  officers  already  in  exist- 
ence. In  the  constitution  of  Connecticut,  provision  is  made  for  giving  the 
truth  in  evidence,  and  authorizing  the  jury  to  determine  both  the  law  and  the 
fact.  In  several  of  the  States,  there  is  only  a  general  provision  in  favor  of  the 
liberty  of  the  press,  and  in  some  the  subject  is  not  noticed.  Nothing  is  said  re- 
spec;ing  giving  the  truth  in  evidence  in  the  constitution  of  South  Carolina,  but 
the  Supreme  Court  of  that  State  has  declared  the  law  there  to  be,  that  in  pro- 
secutions for  libels,  the  intention  with  which  the  publication  is  made,  as  well  as 
the  fact  of  publication  and  trvth  of  the  innuendoes  are  involved  in  the  general 
issue  ;  and  the  whole  case,  law  as  well  zsfact,  is  resolved  by  a  geneial  ver- 
dict. State  V.  Allen,  1  McCord's  R.  525.  In  Massachusetts,  the  Supreme 
Court  held,  in  1808,  in  the  case  of  The  Commonwealih  v.  Clapp,  4  Mass.  R. 
168,  which  was  on  an  indictment  for  a  libel,  that  the  defendant  may  not  justify 
himself  for  publishing  a  libel,  merely  by  proving  the  truth  of  the  publication, 
but  that  he  may  prove  that  the  publication  was  for  a  justifiable  purpose,  and 
no^  ma/idoMS,  or  with  the  intent  to  defame  ;  and  where  the  purpose  is  justifi- 
able (the  court  say)  there  may  be  cases  when  the  truth  may  be  given  in  evidence. 
In  1819  the  Legislature  of  New- York  enacted  "  In  an  action  for  libel  or 
slander,  it  shall  not  be  necessary  to  state  in  the  complaint  any  extrinsic  facts  for 
the  purpose  of  showing  the  application  to  the  plaintiff  of  the  defamatory  matter, 
out  of  which  the  cause  of  action  arose ;  but  it  shall  be  suffii-'ient  to  stale  gene- 
lally,  that  the  same  was  published  or  spoken  concerning  the  plaintiff.  And  if 
such  allegation  be  controverted,  the  plaintiff  shall  be  bound  to  establish  on  trial 
that  it  was  so  published  or  spoken."     Code  as  amended,  1849,  ^  104. 


253  CRIMINAL  DIVISION. 

tions,  unless  they  amount  to  the  most  direct  and  personal  provoca- 
tions to  break  the  peace.  Finally,  it  may  be  remarked  that  the 
admitting  truth    to  be  a  justiHcation  a^^ainst  a   criminal   charge, 

would  be  attended  with  one  difficulty  and  mischief  so 
[  *254  ]     great,  as,  without   material  alterations  in  our  *criminal 

procedure,  to  be  in  effect  insuperable.  As  any  one 
may  commence  a  prosecution  for  a  libel  on  any  other  party,  if  a 
justification  of  the  truth  were  abmissible,  the  character  of  an  in- 
dividual might  be  made  the  subject  of  investigation  without  his  au- 
thority, even  without  his  knowledge,  and  without  his  having  any 
opportunity  to  defend  himself;  thus  it  would  be  in  the  pjwer  of 
any  two  malicious  men  most  effectually  to  injure  and  calumniate 
any  other  individual  under  the  pretext  of  a  judicial  inquiry. 

These  reasons,  which  have  been  urged  as  the  ground  of  rejecting 
evidence  of  the  truth  of  a  libellous  charge  as  a  complete  defence  to 
an  indictment  or  information,  apply  to  cases  where  the  prosecutor  is 
guilty  of  the  criminal  or  immoral  act  imputed  :  in  other  instances, 
the  same  principles  apply  with  a  still  superior  force,  strengthened 
by  circumsiances  peculiar  to  themselves. 

Thus,  whore  the  libel  consists  in  the  holding  up  an  individual  to 
ridicule,  by  exposing  some  personal  deformity,  ina  lampo  on  or  print, 
the  truth  of  the  representation  would  certainly  aggravate  the  ridicule 
and  would  by  no  means  lessen  the  malice  of  the  author  (r). 

*With   respect  to  libels  against  religion,  or  morality, 
[  *255  ]     the  permitting   such  a  defence   would  be  attended  with 

consequences  almost  too  absurd  to  mention.  Suppose  a 
person  to  publish,  that  no  overruling  Providence  exists  ;  or  that,  to 
break  a  promise  or  an  oath  is  a  virtuous  act — could  the  discussion  of 
such  questions  be  tolerated  in  a  court,  or  brought  to  issue  before  a 
jury  ?  or  would  proof  that  indecent  transactions  have  actually  oc- 
curred, supply  any  excuse  for  the  public  exhibition  of  them  in  a  print 
or  a  pamphlet  ? 

(r)  Dig.  L.  L.  16.  3  Bac.  Ab.  495.  4  Bac.  Ab.  516.  King  v.  Roberts,  cor. 
Ld.  Hardwicke.  Puta  si  alter  poenam  delicti  sui  suslinuerit,  aut  in  vitium  nat- 
urale  objiciatur,  claudus  aliquis,  luscus,  aut  gibbosus  voceuir  veritatem  convicii 
non  exeusarequo  minus  animo  injuriandi,  id  factum  presumatur,  contrarii  tamen 
probalionem  hie  adraittendam.     Vinn.  in.  In.  Just.  lib.  4. 


INTENTION— OCCASION.  25ft 

Where,  however,  an  indictment  is  expressly  framed  upon  the  stat- 
utes of  Soandalura  Ma^^natura,  it  may  be  doubted  whether  the  truth 
would  not  supply  a  defence,  since  the  words  false  and  lies  are  used 
as  descriptive  of  the  offence  (s)- 

In  the  next  place,   there  exists  an  important  and  numerous  class 
of  eases,  in  which  the  law,  consulting  the  general  convenience  and 
the  exigences  of  society,  extends  a  qualified  protection,  dependent 
on  the  question  whether  the  party  has  acted  bon    fide  on 
an  occasion  recognized  by  *the  law,  or  has  merely  used     [  *256  ] 
the  occasion  as  a  colour  and  pretext  for  doing  mischief 
This  most  important  limitation  seems,  on  principles  of  public  policy 
already  adverted  to  in  discussing  the  grounds  of  civil  liabilty,  to  ex- 
tend to  all  publications  made  in  the  fair  discharge  of  any  public  or 
private,  or  legal  or  moral  duty,  of  which  the  ordinary  exigences  of  so- 
ciety, or  the°  party's  own  private  interests,  require   the  perform- 

anee.  ,     ,  i-    ^     r 

This  principle  seems  to  comprehend  all  publications  on  subjects  of 
general  and  public  concern  in  which  the  author  possesses  an  interest 
in  common  with  the  rest  of  the  community. 

Every  one,  as  it  seems,  has  a  right  to  publish  that  which,  in  his 
opinion,  will  tend  to  enlighten,  instruct,  or  even  amuse  mankind  ; 
he  who  attains  his  object  may  justly  be  regarded  as  a  benefactor  to 
society  ;  he  who  fails  is  not  amenable  as  a  criminal,  however  errone- 
ous  his  views  mav  be,  unless  it  plainly  appear  that  his  real  object 
was  not  to  improve  or  benefit  mankind,  but  to  produce  public  mis- 
chief and  disorder  bv  alienating  men's  minds  from  their  public  or 
private  duties,  by  base  or  unworthy  means,  by  destroying  their  re- 
ligious faith,  corrupting  their  morals,  or  instigating  them  to  acts  of 
se°dition,  tumult,  and  outrage,  or  to  some  other  violation  of  peace. 

Upon  such  principles  it  is  that  no  man  is  punishable  in  respect  of 
the  publication  of  his  opinion  *on  subjects  in  which  man- 
kind possess  a  common  interest,  be  they  theological  (0,     [  *2o7  J 
moral  (m),   political  (a;),   or  critical  (2/),  provided  his 

(s)  See  12  Rep.  133.  2  Mod.  150. 

U)  Supra  c.  vi.  (")  Supra  c.  vii. 

(X)  Supra  cviii.  (y)  Supra  vol.  I.  p- 305, 

Vol.  II.  85 


257  CRIMINAL  DIVISION. 

communications  be  sincere  and  honest  and  not  used  as  a  cloak  of 
maliciousness. 

The  same  essential  principle  also  governs  communications  affect- 
ing the  characters  of  private  individuals.  No  man  is  punishable  as 
a  criminal  for  a  publication  made  on  an  occasion  which  the  interests 
of  others,  or  even  his  own,  fairly  required  him  to  make,  though  its 
contents  may  convey  an  imputation  on  the  character  of  another, 
provided,  such  a  publication  was  called  for  by  the  exigency  of  the 
occasion,  and  was  made  bona  fide  with  a  view  to  the  occasion  without 
malice. 

Many  instances,  particularly  that  of  the  King  v.  Bayley  (2), 
have  already  been  cited  in  illustration  of  the  operation  of  the  same 
principle  on  the  question  of  civil  liability ;  it  is,  therefore,  unneces- 
sary to  repeat  them,  for  the  question  of  civil  and  criminal  liability, 
in  the  case  of  libels  reflecting  on  individuals,  seems  in  this  class  of 
cases  to  be  identical,  whenever  the  publication  of  such  a 
[  *258  ]  *libel  is  criminal,  as  concerns  the  public,  it  constitutes  a 
civil  injury  repairable  in  damages  at  the  suit  of  the  party 
calumniated  (a). 

It  is,  however,  important  to  observe,  in  respect  of  this  class  of 
cases,  where  the  intention  of  the  publisher  is  the  test  of  civil  or  of 
penal  liability,  that  with  a  view  to  exemption  as  well  as  civil  re- 
sponsibility, the  mere  abstract  intention  of  the  party  cannot  protect 
him,  in  the  absence  of  facts,  which  constitute  an  occasion  recognized 
by  the  law.  The  law  allows  no  man  to  defend  himself  by  saying, 
"  I  did  an  act,  in  itself  injurious,  mischievous,  and  illegal,  but  I  did 
it  with  an  excellent  intention."  And  it  must  also  be  remarked, 
that  a  publication  not  warranted  by  the  nature  and  exigency  of  the 
occasion,  cannot  be  justified  in  a  criminal,  any  more  than  in  a  civil 
proceeding ;  for  if  the  occasion  does  not  justify  or  excuse  the  act, 
neither,  on  the  principle  just  adverted  to,  can  mere  abstract  good 
intention  supply  a  sufficient  defence  [1] . 

{z)  3  Bac.  Ab.  Libel,  A.  2,  cited  by  Best,  J.  5  B.  &  A.  647.  Supra  vol. 
I.  315. 

(a)  Supra  vol.  I.  p.  268. 

[1]  Thus  it  will  be  seen  that  the  common  law  secures  the  very  right  to  obtain 
which  it  was  supposed  necessary  to  pass  the  act  of  1805,  referred  to  in  page 
252  supra,  note  [1].     By  that  act  a  defendant  prosecuted  criminally  for  a  libel 


INTENTION,  ETC.  258 

is  authorized  in  his  defence  to  give  in  evidence  the  truth  of  the  matter  charged 
as  libellous,  but  cannot  do  so  unless  it  be  made  to  appear  that  the  matter  charged 
as  libellous  was  published  with  good  motives  and  fur  justifiable  ends.  At  "the 
common  law,  a  defendant  prosecuted  criminally  cannot  give  \he  truth  in  evidence 
in  his  defence  ;  but  he  may  show  the  occasion  upon  which  the  publication  was 
made,  and  if  it  be  on  a  subject  of  general  and  fublic  concern  in  which  he  has  an 
interest  in  common  with  the  rest  of  the  community,  or  if  the  business  transac- 
tions of  others,  or  even  his  own,  require  the  making  of  the  communication,  he 
is  not  punishable,  provided  the  communication  be  sincere  and  honest,  and  not 
used  as  a  cloak  of  maliciousness.  In  one  respect  indeed,  the  statute  is  not  as 
broad  as  the  common  law.  The  former  auihorizes  the  truth  of  the  matter  al- 
leged to  be  libellous  to  be  given  in  evidence  in  defence,  provided  the  motive  of 
the  author  be  pure  and  the  end  of  the  publication  >us/2^aWc ;  whereas  the  latter 
excuses  the  author  on  showing  that  the  occasion  was  such  as  to  justify  the 
publication,  without  requiring,  or  even  permitting  the  truth  of  the  matter  to  be 
given  in  evidence,  provided  the  communication  was  made  bona  fide  with  a  view 
to  the  occasion  ivithout  malice. 

In  criminal  prosecutions  for  libels  the  proof  of  good  motives  and  justifiable 
ends  in  the  making  of  the  publication,  is  required  to  justify  the  party.  It  was 
so  held  under  the  provisions  in  the  constitutions  of  both  New  York  and  Mass- 
achusetts. The  People  v.  Barthelemy,  2  Hill,  248 ;  The  Commonwealth  v. 
Bonner  9  Metcalf.  410. 


CHAPTER  XIII. 


Proceedings  against  Offenders. 

[  *259  ]  *The  proceedings  against  offenders  are  either  sum- 
mary, as  by  their  immediate  apprehension  and  imprison- 
ment ;  by  attachment,  by  binding  over  to  their  good  behaviour  ;  or, 
in  the  more  usual  mode,  by  information  [1]  or  indictment.  The 
summary  process  is  in  general  founded  upon  contemptuous  language 
and  reflections  applied  to  those  who  preside  in  courts  of  justice  and 
their  proceedings  ;  and  such  contempts  are  either  direct,  where  a 
judge  or  magistrate  is  openly  insulted  in  the  execution  of  his  office, 
or  consequential,  where  the  offender,  by  speaking  or  writing  con- 
temptuously of  the  court,  or  its  judges  in  their  judicial  capacity,  re- 
flects upon  the  authority  by  which  they  were  appointed,  and  creates 
a  prejudice  against  the  administration  of  justice.  And  first,  where 
the  insult  is  offered  in  the  face  of  the  court  by  the  use  of  contume- 
lious language,  demonstrating  the  want  of  that  respect 
[  *260  ]  and  regard  which  is  essential  to  the  preservation  of  *it3 
authority,  the  offender,  it  is  said,  may  be  instantly  appre- 
hended, fined,  or  imprisoned,  at  the  discretion  of  the  judge,  without 
further  examination  (a). 

This  doctrine  appears  to  extend  to  all  cases  where  contemptuous 
words  are  spoken  in  the  presence  of  a  magistrate  in  the  actual  dis- 
charge of  his  duty.  As  if  a  man  should  say  to  a  justice  of  the 
peace  in  the  execution  of  his  office,  "  You  are  a  rogue  (6)  and  a 

(a)  Cro.  Eliz.  78.     2  Roll.  Ab.  78.  4  Bl.  Comm.  286.  Staund.  P.  C.  73.  b. 
(i)  Sir.  420.  Ow.  113.  Mo.  470.     Cro.  El.  581. 
[I]  See  note  [1]  p.  272,  post. 


ATTACHMENT— CONTEMPT.  260 

liar,"  or  tell  the  judge  of  a  Court  Leet  that  he  is  a  fool  (c),  or  is 
forsworn  ((^),  or  say — "  If  I  cannot  have  justice  here,  I  will  have 
(c)  it  elsewhere."  And  though  the  judge  may  elect  to  proceed  in 
this  summary  mode,  yet  if  he  does  not,  the  offender  is  liable  to 
an  indictment,  since,  wherever  a  justice  may  commit  for  a  contempt, 
the  party  may  he  indicted  for  the  misdemeanor  (/). 

Where  the  contempt  is  not  offered  immediately  in  the  face  of  the 
court,  but  consists  in  insolent  comments  upon  the  court  or  its  pro- 
ceedinf^s,  or  in  the  indecent  publication  of  matters  still 
pending,  the  effect  of  which  may  be  to  create  'prejudice  [  *261  ] 
and  partiality,  and  thereby  to  hinder  the  fair  administra- 
tion of  justice,  the  proceeding  is  by  attachment,  which  is  a  process 
from  a  Court  of  Record,  awarded  by  the  justices  at  their  discretion, 
upon  a  suggestion,  or  upon  their  own  knowledge  (g)  or  by  imposing 
a  fine. 

It  appears,  generally,  that  an  attachment  may  be  granted  by  any 
of  the  superior  courts  of  Westminster  Hall  against  any  persons 
guilty  of  contempts  against  them.  So  a  Court  of  Gaol  Delivery 
may  impose  a  fine,  and,  as  it  seems,  punish  by  attachment,  for  a 
contempt  in  prematurely  publishing  portions  of  proceedings  still 
pending,  in  contempt  of  the  prohibition  of  the  Court  (Ji). 

And  a  judge,  at  Nisi  Prius,  may  fine  a  defendant,  on  his  trial  for 
a  misdemeanor,  for  contemptuous  and  offensive  expres- 
sions, applied  *to  the  judge  in  the  course  of  making  his     [  *262  ] 
defence  (i) . 

(c)  Cro.  Eliz.  78. 

(d)  2  Roll.  Ab.  78.  (e)  1  Sid.  144.     1  Keb.  508. 
(/)  Str.  420.                                             ig)  2  Haw.  213,  vid.  Wils.  300. 
{h)  In  the  case  of  the  King  v.  Clement,  (4  B.    &  A.  218,)  it  was  held,  that 

a  court  of  goal  delivery  had  power  to  prohibit  the  publication  of  any  part  of  the 
proceeding's  against  several  persons  charged  with  high  treason,  until  the  whole 
should  belrought  to  a  conclusion.  And  it  was  held,  that  a  fine  imposed  by  the 
court  on  the  editor  of  a  newspaper,  for  a  contempt  in  publishing  those  proceed- 
ings, contrary  to  such  order,  was  legal,  although  the  fine  was  imposed  in  his 
ab'sence,  service  of  notice  to  appear  to  answer  for  the  contempt,  having  beea 
served  at  the  office  at  which  the  newspaper  was  published  according  to  the  st. 
38  G.  Ill,  c.  78,  s.  12. 

(i)  R.  r.  Davison,  4  B.    &   A.    329.     Abbott  C.  J.  in  giving  his  judgment 
observed,  "  If  I  thought  that  the  decision  I  am  about  to  pronounce,  could  have 


262  CRIMINAL  DIVISION. 

When  a  party,  not  present  in  court,  publishes  any  contemptuous 
expression  against  the  court  or  its  proceedings,  the  court  will,  upon 
an  affidavit  of  the  fact,  make  a  rule  upon  him  to  shew  cause  why  an 
attachment  should  not  be  granted  against  him ;  and  in  some  cases, 
■where  the  offence  is  of  a  ver}^  flagrant  nature,  will  grant  an  attach- 
ment in  the  first  instance  [1]. 
[  '263  ]  *Upon  a  rule  granted  (Z:)  against  the  defendant  Wiatt^ 
to  shew  cause  why  an  attachment  should  not  issue  against 
him  for  publishing  a  libel  on  the  Court  of  King's  Bench,  the  defend- 
ant shewed  by  affidavit  that  his  fault  was  not  wilful,  but  merely  through 
ignorance  ;  that  he  had  the  libel  from  one  Crowufield,  a  printer  in 
Cambridge  ;  that  it  was  in  Latin,  a  language  which  the  defendant 
did  not  understand  ;  and  that  he  did  not  know  who  was  the  author, 

the  effect  of  restraining  any  person,  who  may  hereafter  stand  on  his  trial,  for 
making  a  bold  as  well  as  a  legitimate  course  of  defence,  I  would  pause  before  I 
pronounced  that  decision.  The  question,  indeed,  is  a  momenlous  one.  It  is 
absolutely  a  question  whether  the  law  of  the  land  shall  or  shall  not  continue  to 
be  properly  administered.  For  it  is  utterly  impossible  that  the  law  can  be  so 
administered  if  those  who  are  charged  with  the  duty  of  administering  it, 
have  not  power  to  prevent  instances  of  indecorum  from  occurring  in  their  own 
presence.  That  power  has  been  vested  in  the  judges,  not  for  their  personal 
protection,  but  for  that  of  the  public  ;  and  a  judge  will  depart  from  his  bounden 
duty  if  he  forbears  to  use  it  when  occasions  arise  which  call  for  its  exercise.  I 
quite  agree  that  this  power,  more  especially  where  it  is  to  be  exercised  on  the 
person  of  a  defendant,  is  to  be  used  with  the  greatest  care  and  moderation.  But 
if  the  publication  of  blasphemy  and  irreligion  cannot  in  any  other  way  be  pre- 
vented, in  my  opinion,  a  judge  will  betray  his  trust  who  does  not  put  it  in  force." 
(A)  8  Mod.   123. 

[1]  In  the  People  v.  Freer,  1  Caines  484,  518,  the  defendant  was  brought  be- 
fore the  Supreme  Court  for  a  publication  apparently  intended  to  preiudice  and 
influence  the  public  mind,  and  to  intimidate  the  court  in  deciding  a  motion  pend- 
ing for  a  new  trial.  A  rule  was  granted  to  shew  cause,  and  the  defendant  not 
appearing  at  the  appointed  day,  an  attachment  was  issued  against  him.  On 
being  brought  into  court,  he  cleared  himself  of  all  intentional  disrespect  or  con- 
tempt. The  court  under  the  peculiar  circumstances  of  the  case,  and  in  the  hope 
that  the  notice  taken  of  the  conduct  of  the  defendant,  would  serve  as  a  warnino^ 
to  others,  inflicted  only  a  nominal  fine.  See  also  the  cases  of  Hollingsworth  u. 
Duane,  Wallace's  R.  77  ;  Bayard  v.  Passmere,  3  Yeates  438  ;  and  Respublica  v. 
Oswald,  1  Dallas  319,  in  which  attachments  were  issued  for  publications  in  ref- 
erence to  causes  pending  in  court. 


ATTACHMENT— CONTEMPT.  263 

otherwise  than  by  a  letter  which  he  received  from  the  printer,  and 
which  was  affixed  to  the  affidavit  by  which  letter  it  appeared  that 
Dr.  Middleton  was  the  author.  On  this  it  was  moved  that  the  rule 
should  be  discharged  ;  but  the  rule  was  continued  on  the  defendant 
until  he  made  out  his  allegation  against  the  printer,  who  was  there- 
fore joined  in  the  rule,  that  both  of  them  might  be  before  the  court. 
In  the  next  term,  Dr.  Middleton  {I)  appeared,  and  confessed  that  he 
was  the  author  of  the  book ;  the  rule  was  then  discharged  against 
the  publisher  and  printer,  and  the  doctor  was  committed  until  further 
consideration.  After  a  few  days'  confinement  he  was  brought  into 
court,  fined  <£50,  and  bound  to  his  good  behaviour  for  a  year. 

*A  rule  (»i)  was  granted  to  shew  cause  why  an  at- 
tachment should  not  issue  against  Elizabeth  Mayer  and  [  *264  ] 
Dowling,  for  publishing  a  libel  on  the  proceedings  of  the 
court  in  the  trial  of  Lady  Lawley.  Elizabeth  Mayer  produced  an 
affidavit,  stating,  that  her  husband  kept  a  pamphlet  shop ;  that;  in  his 
absence  Vaughan  came  to  the  shop  and  asked  for  Laly  Lawley's 
trial  ;  that  she  did  not  know  that  it  was  in  the  shop,  but  searching 
found  it,  and  refused  to  sell  it  to  Vaughan,  but  permitted  him  to 
read  it.  The  court  said  it  was  beyond  all  question  that  attachments 
had  been  granted  in  such  cases,  and  particularly  alluded  to  J)r. 
Middletori's  case.  The  court,  in  general,  agreed  to  discharge  the 
rule  as  to  her,  and  said  they  could  not  make  the  rule  absolute  as  to 
Dowling,  because  there  was  no  affidavit  of  service. 

A  rule  having  been  (w)  obtained  to  shew  cause  why  an  informa- 
tion should  not  be  granted,  the  defendant,  on  being  served  with  the 
rule,  shewed  his  disregard  of  it  in  very  contemptuous  language. 
Upon  a  motion  for  an  attachment,  grounded  upon  this  conteir.pt, 
Northey,  Attorney-General,  insisted  that  he  ought  first  to  be  heard 
to  shew  cause  against  it ;  but  the  court  said,  "  He  shall 
answer  it  in  custody,  for  it  is  to  no  purpose  *to  serve  him  [  *265  ] 
with  a  second  rule  who  has  slighted  and  despised  the  first ; 
it  would  be  to  expose  the  court  to  further  contempt." 

{I)  Fort.  R.  201. 

(m)  Mich.  8  G.  II.  1732.     2  Barnard.  43,  K.  B. 

(n)  1  Salk.  84, 


265  CRIMINAL  DIVISION. 

And  where  the  court  apprehend  that  the  attachment  mil  be  forci- 
bly resisted,  they  will  order  the  sheriff  of  the  county  (o)  to  take 
■with  him  a  force  sufficient  for  its  due  execution.  But  it  seems  that 
the  court  will  not  grant  an  attachment  (^p)  in  the  first  instance,  un- 
less the  words  be  sworn  to  by  two  witnesses,  since  otherwise  it  would 
be  in  the  power  of  one  hardy  man  to  hinder  another  of  an  opportun- 
ity of  defending  himself  before  he  was  deprived  of  his  liberty  ;  and 
when  contemptuous  words  are  spoken  of  the  court,  the  rule  for  at- 
tachment is  granted  in  the  first  instance  ;  but  where  they  are  spoken 
of  its  process,  a  rule  to  shew  cause  (5)  only  ;  and  the  court  will 
punish  for  contemptuous  words  spoken  on  the  delivery  of  a  declara- 
tion (r)  in  ejectment. 

"Where  the  proprietor  of  a  newspaper  was  guilty  of  a  contempt,  in 
publishing  the  proceedings  of  a  Court  of  Gaol  Delivery  contrary  to 
the  order  of  the  court;  the  court,  on  affidavit  of  the  fact, 
[  *266  ]  and  after  an  affidavit  of  notice  to  the  party  *to  appear  be- 
fore the  court  to  answer  the  contempt  on  a  day  specified 
and  default  made,  proceeded  to  impore  a  fine  of  £500  ;  and  the 
Court  of  King's  Bench  holding  the  proceeding  to  be  regular,  after- 
wards refused  a  certiorari  to  bring  up  the  proceedings  into  that 
court  (s)  [  a  a]. 

"When  the  party  has  been  brought  into  court,  he  is  either  commit. 
ted,  in  order  to  answer  interrogatories,  or  is  permitted  to  enter  into 
a  recognizance  with  two  sureties,  in  such  sum  as  the  court  will  di- 
rect, to  appear  and  make  answer  upon  oath  to  such  interrogato- 
ries (f)  as  shall  be  exhibited  against  him. 

And  it  is  said  (m),  that  the  party  cannot  confess  the  contempt 
and  throw  himself  upon  the  mercy  of  the  court,  except  in  cases  of 
rescue  and  of  contempts  committed  in  the  face  of  the  court.     If  the 

(0)   1  Sii.  185.  if)  1  Str.  185,  3  At.  219,  Say.  Rep.  114. 

{q)  Tidd.  4-.8,  vid.  Str.  185,  1068.  (r)  Sir.  567. 

(5)  The  King  v.  Clement,  4  B.  &  A.  218,  supra  261. 

[a  a}  In  the  case  of  The  King  v.  Gilham,  1  M.  &  M.  165,  it  was  held  that 
exhibiting  in  an  assize  town  inflammatory  publications  concerning  a  prisoner 
about  to  be  tried  at  the  assizes  for  a  crime,  was  not  a  contempt  which  the  judge 
of  assize  could  interfere  to  prevent  by  commitment. 

(0  Haw.  P.  C.  c.  22,  1.     Barnard.  K.  B.  58. 

(u)  1  Bl.  649,  6.  vide  4  Bl.  Coram.  284. 


BINDING  TO  GOOD  BEHAVIOUR.  266 

party  be  discharged  upon  his  recognizance  (a;)  to  answer  interroga- 
tories, and  none  be  exhibited  within  four  dajs  after  entering  into  such 
recognizance,  the  court  will  discharge  it  upon  motion  ;  but  if  no  such 
motion  be  made,  the  court  will  compel  him  to  answer  interroffaiories 
exhibited  after  the  four  days.  Upon  these  interrogatories, 
examinations  are  taken,  and  *it  is  referred  to  the  Master  [  "267  ] 
of  the  Crown  OflBce  to  make  his  report ;  the  party  (y)  is 
then  either  acquitted  or  adjudged  to  be  in  contempt. 

If  the  party,  in  his  answer,  purge  himself  from  the  charge  upon 
oath,  though  he  is  liable  to  a  prosecution  for  the  perjury  (2),  if  he 
has  sworn  falsely,  he  must  nevertheless  be  acquitted  of  the  con- 
tempt and  his  answer  cannot  (a)  be  disproved  by  adverse  and  con- 
tradictory affidavits. 

Next,  by  requiring  sureties  of  the  peace,  or  for  the  good  be- 
haviour of  the  party. — It  seems  agreed,  that  the  publication  of  a 
libel,  does  not  amount  to  a  breach  of  the  peace,  but  rests  in  tendency 
only. 

In  Dalton's  Justice  (6),  a  libel  is  defined  as  a  thing  tendincr  to  a 
breach  of  the  peace  ;  in  Sir  Baptist  Mickes's  (c)  case,  it  is  called  a 
provocation  to  a  breach  of  the  peace  :  and  in  the  King  (d)  v. 
Sum7ners,  it  was  held  to  be  cognizable  before  justices,  because  it 
tended  to  a  breach  of  the  peace  ;  and  in  Hawkins's  Pleas  of  the 
Crown  (g),  and  Sir  William  Blackstone's  Commentaries  (/),  a  libel 
in  the  criminal  sense  is  also  defined  by  its  tendency.  In 
the  case  of  The  King  v.  Wilkes,  *the  court  of  Common  [  *268  ] 
Pleas  (g)  gave  a  decided  opinion  to  the  same  effect. 
And  L.  C.  J.  Pratt  observed,  "  I  cannot  find  that  a  libeller  is  bound 
to  find  surety  of  the  peace  in  any  book  whatever,  nor  ever  was  in 
any  case  but  one,  viz. — the  case  of  the  seven'  Bishops,  where  three 
Judges  said,  that  surety  of  the  peace  was  required  in  the  case  of 
libel :  Judge  Powell,  the  only  honest  man  of  the  four  judges,  dis- 
sented ;  and  I  am  bold  to  be  of  his  opinion,  and  to  say,  that  the  case 
is  not  law.     Upon  the  whole,  it  is  absurd  to  require  surety  of  the 

(a;)  Haw.  P.  C.  22,  s.  1.  5  T.  R.  362.  (y)  B- R.  H.  23. 

(z)  6  Mod.  37.  (a)  4  Bl.  Comm.  288,  {b}  289. 

(c)  Hob.  224.  {d)  Lev.  139.  (c)  c  73,  s-  2 

(/)   4  Bl.  C.  150.  {g)  2  Wils.  150. 
Vol.  II.  86 


268  CRIMINAL  DIVISION. 

peace  in  the  case  of  a  libeller."     And  it  was  held  in  tlie  above  case, 
that  though   surety  of  the   peace  mi^hc  be  require!  in  the  case  of 
libel,  it  could  not  exclude   the  privilege   of  a  member  of    either 
House  of  Parliament,  who  is  entitled  to  privilege  from  arrest,  in  all 
cases  except  treason,  felony,  and  actual  breach  of  the  peace  ;  and 
the  decision  of  the  court  in  the  proceeding  against  the  seven  Bish- 
ops, who  were  committed  to  the  Tower  for  not  entering  into  recog- 
nizances after  having  published  an  alleged  libel,  in  their  petition  to 
the  King,  was  strongly  reprobated  [1].     But  it  has  been  the  prac- 
tice, from  very  eaily  times,  to  require  security  for  the 
[  *269  ]     good  behaviour  from  persons  publishing  contumelious  *and 
disrespectful   words  concerning  ministers  and  officers  of 
justice,  and  their  pioceedings. 

It  appears  from  the  3d  Institute  (A),  that  in  the  reign  of  Edward 
the  3d,  John  de  Northampton,  an  attorney  of  the  King's  Bench, 
was  committed  to  the  custody  of  the  marshal,  for  having  written  a 
letter  reflecting  on  the  conduct  of  the  Justice  ;  and  that  he  after- 
wards found  six  mainpernors  for  his  good  behaviour. 

And  it  seems  that  sureties  for  the  good  behavior  may  be  required 
from  any  person  (^)  who  applies  contemptuous  or  disrespectful 
language  to  any  Judge,  Justice  of  the  Peace,  Mayor,  or  other  civil 
Magistrate,  though  he  be  not  in  the  actual  execution  of  his  duty  (i), 
and  though  the  words  have  no  relation  to  his  office. 

And  that  the  rule  extends  to  general  words  of  disparagement 
spoken  of  such  magistrates  in  their  absence  (^)  ;  but  Lord  Holt, 
C.  J.  intimated,  that  this  ought  not  to  be  done  by  the  offisuded 

{h)  174. 

(0  Cro.  El.  78.  Salk.  697.  Haw.  P.  C.  c.  61,  s.  2.  6  Mod.  124.  Holt 
654.     Str.  420. 

(A)  Cro.  El.  78.  1  Lev.  52,  c.  2,  s.  3.  11  Mod.  117.  Cro.  Eliz.  689. 
contra. 

[1]  In  Respublica  v.  Duane,  1  Binney  98,  C.  J.  Tilghman  held  that  it  was 
most  agreeable  to  the  spirit  of  the  constitution  of  the  State,  and  most  conducive 
to  the  suppression  of  libels  to  adopt  it  as  a  general  rule,  not  to  demand  surety 
for  good  behavior  before  conviction  ;  and  in  conformity  to  these  views,  discharg- 
ed from  custody  William  Duane,  who  had  been  committed  by  the  Mayor  of 
Philadelphia  on  his  refusal  to  give  sureties  for  good  behavior  in  a  complaint 
against  him  for  publishing  a  libel  concerning  the  Marquis  de  Casa  Yiuju,  the 
then  ambassador  of  the  King  of  Spain. 


BINDING  TO  GOOD  BEHAVIOUR.  270 

justice,  but  by  one  of  his  brethren  (i).      And  the  same 
learned  Judge,  in  the  Queen  v.  Langleij  (w)  "after  ob-     [  *270  ] 
servino'  that  binding  to  the  good  behavior  was  sufficient 
to  secure   the   authority  of  Mayors,  added,   that  it  must  be  done 
instantly,  according  to  Dr.  Bonham's{n)  case.     It  seems,  however, 
from  the  general  current  of  decisions  upon  this  point,  which  are  very 
perplexed  and  contradictory,  that  the  words  must  either  have  been 
spoken  in  the  presence  of  the  magistrate  ;  or  if  in  his  absence,  have 
in  some  way  affected  him  in  his  office.     In  other  cases  it  might  not 
be  prudent  in  a  magistrate  to  commit  for  want  of  sureties,  since  he 
does  it  at  his  peril,  the  case  of  commitment  must  be  expressed  with 
certainty  upon  the  face  of  the  warrant(o)  ;  and  in  caseit  should  prove 
insufficient,  he  would  be  hable  to  an  action  for  false  imprisonment. 
But  it  seems  to  be  perfectly  clear,  that  for  unmannerly  (p)  ex- 
pressions, used  in  the  face  of  a  Court  of  Justice,  though  not  applied 
to  the  Court  or  its  proceedings,  or  for  words  spoken  for  the  purpose 
of  deterring  an  inferior  officer,  as  a  constable,  from  the  execution 
(q)  of  his  office,  or  abusing  him  whilst  discharging  his  duty,  the 
offender  may  be  bound  to  his  good  behavior. 

With  regard  to  mere  rash,  quarrelsome,  uncivil  Vords  [  *271  ] 
in  general,  it  seems  that  sureties  cannot  be  demanded  from 
the  speaker,  unless  they  either  amount  to  a  direct  solicitation  to 
break  the  peace  or  scandalize  the  government,  by  abusing  those  who 
are  entrusted  by  it  with  the  administration  of  justice  ;  or  be  utter- 
ed with  intent  to  deter  an  officer  from  the  execution  of  his  duty  (r); 
It  has  been  already  seen,  that  for  a  libel  in  general,  sureties  for 
the  peace  are  not  demandable  ;  but  where  a  letter  contains  a  direct 
challenge,  the  same  security  for  the  good  behavior  may  be  required 
as  if  the  words  had  been  spoken. 

It  is  said,  a  recognizance  to  keep  the  peace  may  be  forfeited  by 
mere  words,  but  they  must  directly  tend  to  a  breach  of  the  peace, 
as  by  a  challenge  to  fight  in  the  party's  presence  (s)- 

(Z)  12  Mod.  514.  {m)  6  Mod.  124.  («)  Siiles  251. 

(o)  Per  Wahnesly,  J.,  Dean's  case,  Cro.  El.  689. 

(p)  1  Lev.  107.     1  Keb.  558. 

(a)  Haw.  P.  C.  c.  61,  s.  2,  3. 

(r)Haw.   P.  Cc.  61,8.3.     Cro.  Car.  498,  499.     Cro.  El.  286.  Pal.    126. 

(s)  4  Burn's  Jus.  353. 


271  CRIMINAL  DIVISION. 

By  the  stat.  60  G.  III.  and  1  Geo.  IV.  s.  16,  it  13  declared 
and  enacted  that  anj  of  his  Majesty's  courts,  or  any  justice  of  the 
peace,  before  -whom  any  person  charged  with  having  printed  or 
published  any  blasphemous  or  seditious  libel,  shall  be  brought  for 
the  purpose  of  giving  bail  upon  such  charge,  shall  make  it  a  part 
of  the  condition  of  the  recognizance,  that  the  person  so  charged 
shall  be  of  good  behaviour  during  the  continuance  of  such  reco«^ 
nizance. 


CHAPTER  XIV. 


Pkoceedixg  by  Information. 

•"With  the  exception  of  ihose  cases  where  a  defendant  [  '272  ] 
has  been  guilty  of  a  contempt,  no  punishment  can  be  in- 
flicted upon  him  for  any  malicious  publication,  unless  he  shall  have 
been  previously  convicted  of  the  fact  upon  the  oath  of  twelve 
Jurors.  There  are  two  modes,  by  either  of  which  the  matter  may 
be  subjected  to  their  verdict ;— by  an  information,  exhibited  in  the 
name  of  the  King,  or  by  the  finding  of  a  bill  by  a  Grand  Jury  [1]. 

Note  hy  the  author-  As  to  ihs  great  antiquity  and  acknowledged  legality  of 
the  proceeding  by  information,  see  the  argument  of  Sir  Bartholomew  Shower, 
1  Show.  Rep.  106;  4  Bl.  Comm.  305,  whence  it  appears  to  have  been  as  an- 
cient as  the  law  itself.  To  introduce  any  discussion  upon  the  subject  of  infor- 
mations would  be  inconsistent  with  the  object  of  this  treatise ;  since,  in  the 
first  place,  informations  are,  in  point  of  law,  no  more  connected  with  the  sub- 
ject of  libel  than  they  are  with  any  other  misdemeanor ;  and  in  the  second,  no 
doubt  can  possibly  rest  upon  the  legality  of  a  practice  which  has  prevaUed  for 
centuries,  and  been  sanctioned  by  at  least  two  acts  of  the  legislature.  4  and  5 
W.  and  M.  c.  18.     43  G.  III.  c.  58. 

f  1]  By  the  5th  article  of  the  amendments  of  the  Constitution  of  the  United 
States,  it  is  provided  that  "  no  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  mUitia  when 
*  in  ac'tual  service  in  time  of  war,  or  public  danger."  The  same  provision  is 
contained  substantially  in  the  constituUons  of  the  several  States,  of  New- York, 
Ohio,  Tennessee,  Indiana,  Maine,  Michigan,  Arkansas.  Alabama,  Xorth-Car- 
oV.na  ;  and  in  the  constitutions  of  the  States  of  Pennsylvania,  Kentucky, 
iLssilsippi,  Illinois,  Delaware  and  Missouri,  the  proceeding  by  informaiion  in 
criminal  prosecutions  is  expressly  prohibited- 


272  CRIMINAL  DIVISION. 

•Informations  are  of  two  descriptions  ;  they  are  either  filed  by  the 
Attorney-General  as  the  immediai:e  officer  of  the  crown, 
[  *27o  ]  or  by  the  master  of  the  Crown  Office  upon  the  compluitit 
of  a  private  individaal.  The  objects  of  those  inforraa- 
tiotis  which  are  filed  by  the  Attorney  General,  are  such  offences  as 
manifestly  tend  to  excite  and  produce  some  great  public  mischief; 
but  in  what  cases  it  may  be  necessary  to  call  in  aid  this  process  is  a 
matter  resting  in  the  discretion  of  that  officer,  whose  duty  it  is,  as 
the  immediate  agent  of  the  crown,  to  bring  under  the  cognizance  of 
the  court  all  offences  and  abuses  which  are  of  so  dangerous  a  nature 
as  to  render  immediate  attention  necessary. 

In  case  of  libels,  this  power  has  been  exercised  where  they  tend 
to  subvert  religion  or  morality  ;  to  excite  discontent  against  the  con- 
stitution, the  King,  or  his  government ;  to  involve  the  country  in 
foreign  wars,  or  to  excite  particular  classes  of  people  to  acts  of 
tumult  and  outrage ;  but  it  has  not  been  usual  for  the  Attorney- Ge- 
neral to  interfere  where  the  libel  has  affected  a  private  individual  only. 

With  respect  to  informations  granted  by  the  Court  of  King's  Bench. 

These  were  formerly  filed  at  the  suggestion  of  the  applicant  by 
the  master  of  the  Crown  Office,  and  at  the  discretion  of 
[  *274  ]  that  officer,  without  any  *direct  application  to  the  court ; 
but  the  practice  was  put  an  end  to  by  st.  4  and  5  W. 
and  M.  c.  18,  which  enacts,  that  the  clerk  of  the  crown  shall  not 
file  any  information  without  an  express  direction  from  the  Court  of 
King's  Bench.  It  may  be  proper  to  adduce  a  few  instances,  to 
show  the  general  principles  by  which  the  judges  of  the  Court  of 
King's  Bench  have  been  guided  in  the  exercise  of  this  branch  of 
their  jurisdiction,  and  to  refer  to  the  regulations  which  they  have 
thought  fit  to  make. 

The  court,  it  seems,  will  grant  a  criminal  information  in  respect 
of  any  publication  which  manifestly  and  directly  tends  to  produce 
any  public  mischief  or  inconvenience. 

As,  for  publishing  general  reflecions  on  the  clergy  of  a  particular 
diocese  (i).  For  offences  tending  to  obstruct  or  prevent  tlie  or- 
dinary course  of  justice,  as  by  publishing  invectives  against  a  judge 

(6)  R.  V.  ^Yilliams,  5  B.  and  A.  595.  Though  no  particular  prosecutor  was 
named,  and  though  the  libellous  matter  was  not  negatived  by  affidavit. 


PROCEEDINGS  BY  INFORMATION.  274 

ard  jury,  by  whom  a  defendant  has  been  found  guilty,  with  a  view 
to  brill-;;  into  suspicion  and  contempt  the  adtninistralion  of  jus  ice 
(e).  So  where  a  defendant  on  a  criminal  information  filed  against 
him,  published  hand-bills  *in  the  assize  town  shortly  be- 
fore the  trial  was  to  have  taken  place,  vindicating  his  [  '275  ] 
own  character  and  reflecting  on  that  of  the  prosecutor(t^). 

So  the  court  will  grant  a  criminal  information  for  publishing  in  a 
newspaper  the  evidence  given  before  a  coroner,  accompanied  with 
comments,  although  the  statement  be  correct,  and  the  party  were 
not  influenced  by  any  malicious  motive  (e) . 

Where  a  cor|  oration  made  an  order,  and  entered  it  on  their  books, 
stating,  that  A.  B.,  against  whom  a  jury  had  found  a  verdict,  with 
large  damages,  in  an  action  for  a  malicious  prosecution  for  perjury, 
which  verdict  had  been  confirmed  by  the  Court  of  Common  Pleas, 
was  actuated  by  motives  of  public  justice,  in  preferring  the  indict- 
ment ;  it  was  held  to  be  a  libel,  reflecting  on  the  administration  of 
justice,  for  which  an  information  ought  to  be  granted  (/). 

So  an  information  will  be  granted  where  the  libel  reflects  on  a 
body  of  men,  though  no  individuals  in  particular  be  pointed  out. 
As  if  the  libel  tend  to  raise  tumults  and  disorder  among  the  people, 
by  exci:ing  their  hatred  against  a  whole  class  of  men. 

*Thus  the  court  granted  an  information  against  the  de-  [  *276  ] 
fendant  for  publishing  a  paper  containing  an  account  of 
a  murder  lately  committed  upon  a  Jewish  woman  and  her  child,  by 
certain  Jews  lately  arrived  from  Portugal,  and  living  near  Broad 
Street,  because  the  child  was  begotten  by  a  Christian,  in  consequence 
of  which,  as  appeared  on  the  affidavics,  many  Jews,  in  diff'erent  parts 
of  the  city,  had  been  threatened  wiih  death,  if  they  appeared 
abroad,  and  had  been  barbarously  treated  {g). 

In   the   case  of  the   King  v.    Staples  {h),  an   information  was 

(c)  R.  V.  White,  1  Camp.  C.  359. 

{d,  R.  V.  Jolliffe,  4  T.  R.  285. 

(e)  R.  V.  Fleet,  I  B.  and  A.  379.  (/)  R.  v.  Watson,  2  T.  R  199. 

(«•)  R.  V.  Onne,  2  Salk.  V24 ,  and  see  1  Ld.  Ray.  486.  R.  v.  Osborne,  Sess. 
C.  260.     2  Batnard.  138,  166.  Kel.  230. 

(A)  And.  228.  Dig.  L.  L.  80.  See  also  LofTt  462.  So  an  information  waa 
granted  for  these  words,  in  a  letter  to  a  mayor.  "  I  am  sure  you  will  not  be 
persuaded  from  doing  justice  by  any  little  arts  of  your  town-clerk,  whose  con- 


276  CRIMINAL  DIVISION. 

granted  against  the  defendant,  for  having  published,  in  a  newspaper 
called  the  York  Journal,  that  Richard  Thompson,  an  aldergaan  of 
York  and  a  justice  of  the  peace,  was  scandalously  guilty  of  telling 
a  lie  in  divers  companies,  viz  :  that  the  said  Staples  had  asked  Mr. 
Thompson's  pardon  for  publishing,  in  the  same  news- 
[  *277  ]  paper,  that  he,  Mr.  Thompson,  was  married  *to  one  Mrs. 
W.,  and,  upon  granting  the  information,  Page  J.  observ- 
ed, that  the  applying  of  such  words  to  a  magistrate  was  an  aggrava- 
tion. 

The  defendant,  Staples,  published  in  a  newspaper,  an  affidavit  of 
bastardy,  which  he  stated  to  have  been  sworn  before  Sir  W.  Billers, 
a  magistrate,  by  a  woman,  without  its  having  been  read  by  her  ;  and 
the  court,  on  granting  the  information,  were  of  opinion,  that  the 
publication  of  the  affidavits  was  punishable,  though  no  scandalous 
reflections  were  made  upon  the  case,  especially  as  they  tended' 
highly  to  defame  a  magistrate. 

The  defendant  (^),  in  a  conversation  about  a  warrant  which  had 
been  granted  by  Mr.  Kent,  a  justice  of  the  peace,  asked  if  Mr.  Kent 
was  a  sworn  justice,  and  being  answered  that  he  was,  replied,  "  If 
he  is  a  sworn  justice,  he  is  a  rogue  and  a  forsworn  rogue  ;"  but  the 
court  refused  an  information,  saying,  it  is  not  the  same  insult  and 
contempt  as  if  spoken  to  him  in  the  execution  of  his  office,  which 
would  make  it  a  matter  indictable.  So  where  the  defendant  (A;) 
said  of  a  justice  of  the  peace,  "  He  is  an  old  rogue  for  sending  his 
warrant  to  me,"  the  court  refused  an  information,  leaving  it  to  the 

party  to  proceed  by  indictment. 
[  *278  ]  *Where  the  libel  imputed  to  a  naval  (?)  commander 
the  want  of  courage,  knowledge,  resolution,  and  veracity  ; 
to  a  peer  (w),  that  he  acted  improperly  as  a  president  of  a  court- 
martial,  and  that  he  had  been  guilty  of  perjury,  the  court  granted 
informations.     The  defendant  (71)   published,  in  a  newspaper  en- 

summate  malice  and  wickedness  against  me  and  ray  family  will  make  him  do 
any  thing,  be  it  ever  so  vile."     R.  v.  Waite,  1  Wils.  22. 

(i)  The  King  v.  Pocock,  Str.  1157. 

(k)  R.  V.  Lee,  12  Mod.  514. 

{I)  Trin.  32  G.  II.  the  King  v.  Dr.  Smollett, 

(m)  The  King  v.  Philip  Thicknesse,  Esq.  Hil.  3  G.  III.  D.  L.  L.  86 

(n)  Tr.  T.  1  G.  III.     Dig.  L.  L.  83. 


PROCEEDING  BY  INFORMATION.  278 

titled  The  Gazetteer,  the  following  libel  on  the  Earl  of  ClanricarcTe, 
whose  countoss,  to  whom  he  had  been  some  time  married,  was  then 
livin'^,  '•  Last  night  the  Right  Honourable  the  Earl  of  Claniicarde 
was  "married,  at  St.  Mary's  Church,  to  Madame  Carolina,  a  cele- 
brated dancer,  belonging  to  the  theatre  at  Smock  Alley,  and  last 
Saturday  they  appeared  in  the  boxes  at  Crow  Street  Theatre  :  she 
hadjewels  on  computed  at  upwards  of  X3000."  An  informatioa 
was  granted.  So  where  the  libel  (o)  imputed  treasonable  designs 
to  a  nobleman,  an  information  was  granted.  And  the 
court  will  grant  informations  without  regard  to  the  *rank  [  *279  ] 
(p')  or  dignity  of  the  parties  traduced,  whenever  their 
immediate  interference  appears  to  be  necessary  for  the  purposes  of 

justice  (^). 

An  information  was  exhibited   against  the  defendant  Brown,  for 
printing  and  publishing  in  a  newspaper,  called  "  The  Royal  Chro- 
nicle," a  libel  (r),  entitled  "  An  authentic  narrative  of  several  par- 
ticulars relating  to  the  death  of  Miss  Frances  Lynes,  whose  ghost  is 
supposed  to  have    haunted  a  house  in  Cock  Lane,  West  Smith- 
field,  for  many  nights  past,"  tending  to  traduce  and  vdify  the  repu- 
tation of  one  William  Kent,  and  to  represent  and  cause  it  to  be  be- 
lieved, that  the   said  William  Kent  had,  by  artful  means  and  cir- 
<;umstances,  obtained  and  procured  the  last  will  and  testament  of 
the  said  Frances  Lynes,  spinster,  since  deceased,  to  be  made,  and 
unjustly  to  cause  the  validity  of  the  said  will  to  be  called  in  question, 
and  also  to  raise  groundless  suspicions  concerning  the  death  of  the 
said  Frances  Lynes  ;  and  also  to  cause  a  false  and  scandalous  report 
raised  and  propagated  by  means  of  public  newspapers,  that   the 
spirit  or  ghost  of  the  said  Frances  Lynes  haunted  the  house  of  one 
Parsons  in  Cock  Lane,  to  be  believed  and  credited  in  order  to  injure 
and  oppress  the  said  William  Kent.  _ 

*Mr.  Willy  Sutton  was  tried  for  the  murder  of  Miss  [  -^^  J 
Bell,  at  the  Old  Bailey,  on  which  occasion  his  innocence 

(0)  Douff.  387  So  against  the  mayor  of  a  town,  for  sending  to  a  noblemati 
a  license  to  keep  a  pnbho  house.  M.yur  of  NurtiK.np.on's  case  1  btr  4-^. 
So  for  representing  a  bishop  as  a  bankrupt.     Hil.  T.  1812.     R^^.^^'/f  • 

(p)  Doug.  387.    R.  V.  Bate.  C?)  Bac.  Ab.  tit.  Lib.  494, 

(r)  E.  T.  2  G.  111.  D.  L.  L.  84. 

Vol.  1L  ^'^ 


280  CRIMINAL  DIVISION. 

appeared  to  be  so  clear,  that  the  jury  interfered  before  the  learned 
judge,  who  presided,  had  begun  tD  sum  up  the  evidence.  An  in- 
formation was  afterwards  granted  (s)  against  Thomas  Holland  for 
writing  a  libel  on  Sutton,  in  a  pamphlet,  entitled  "  A  most  circum- 
stantial account  of  that  unfortunate  young  lady,  Miss  Bell,  otherwise 
Sharpe." 

It  is  not  necessary,  as  a  foundation  for  an  information,  that  the 
libel  should  charge  a  criminal  act ;  such  an  information  has  been 
granted,  where  the  object  of  the  libel  was  to  hold  the  applicant  up 
to  ridicule  (^).  But  it  seems  that,  in  general,  the  imputation  must 
be  of  a  personal  nature  to  induce  the  court  to  interfere,  and  that  it 
is  not  sufficient  that  it  tends  to  lessen  a  man  Qi)  in  his  trade. 

In  the  case  of  the  King  v.   Roherts,  an  information  was  refused 

against    the  defendant  (a;)  for  having  published,    in  a 

[  *281  ]     newspaper,  that  Ward's  *pills  and  drops  had  done  great 

mischief  in  twelve  difl'erent  cases,  and  that  they  were  a 

compound  of  poison  and  antimony. 

When  a  motion  (?/)  was  made  for  an  information  against  the  de- 
fendant for  publishing  reflections  upon  the  African  Company  in  one 
of  the  newspapers,  by  charging  them  with  having  supported  their 
trade  by  treachery  and  fraud,  the  court  refused  to  interfere,  con- 
sidering the  matter  nothing  more  than  a  dispute  upon  a  matter  of 
trade ;  but  the  court  granted  a  rule  to  show  cause  why  an  inform- 
ation should  not  be  granted  for  a  libel  against  the  New-York  Build- 
ings' Company,  charging  them  with  raising  the  value  of  their  stock 
by  getting  .£100,000  under  (z)  the  credit  of  their  seal. 

In  general  where  there  is  reason  to  suppose,  from  the  circumstan- 
ces under  which  the  party  published,  that  the  act  did  not  proceed 
from  a  mere  malicious  intention,  the  court  will  not  interfere  by 
granting  an  informanon. 

(s)  Dig.  L.  L.  82.     East.  T.    I  G.  III.     R.  v.  Holland. 

{t)  R.  V,  Benfield,  2  Burr.  985.  As  for  singing  songs  in  the  streets,  reflect- 
ing on  the  prosecutor's  children,  with  intent  to  destroy  her  domestic  happi- 
ness,    lb. 

(w)  Andr.  229.    2  Barnard.  K.  B.  183.    Dig.  L.  L.  90,  c.  3,  Bac.  Ab.  492 

(a)  Dig.  L.  L.  90.     Bac,  Ab.  tit.  Lib.  492. 

(y)  The  King  v.  Roberts.    Dig.  L.  L.  89.    2  G.  II.  1729. 

(z)  2  Barnard.  K.  B.  114.     R.  v.  Nutt,  D.  L.  L.  78. 


PROCEEDING  BY  INFORMATION.  281 

The  defendant  (a)  advertised,  that  one  Maddox,  an  apothecary, 
had  personated  Dr.  Crow,  a  physician,  and  taken  his 
fees,  and  an  information  *wa3  refused,  the  apothecary  [  '282  ] 
not  pretending  to  deny  the  charge.  When  a  man  ad- 
vertised in  a  public  newspaper,  that  his  wife  had  eloped  from  him, 
and  cautioned  all  persons  against  trusting  her,  an  information  for  a 
libel -being  moved  for,  it  was  denied,  because  it  was  the  only  way 
(6)  the  husband  could  take  to  secure  himself. 

It  was  advertised,  in  one  of  the  newspapers  (c),  that  Lady  Mor- 
dington  kept  an  assembly  in  Moorfields,  upon  which  Lord  Mording- 
ton  advertised,  that  the  person  calUng  herself  Lady  Mordington 
was  an  impostrix,  and  that  there  was  no  such  person,  except  his 
wife,  who  always  lived  with  him.  Upon  motion  for  an  information 
it  was  refused  by  the  court,  since  the  term  impostrix  was  properly 
applied  to  one  assuming  the  title  without  any  right. 

So  where  the  imputation  is  contained  in  a  petition  drawn  up  for 
the  purpose  of  obtaining  redress  for  an  injury,  and  not  with  an  in- 
tention to  asperse  the  prosecutor,  the  court  will  not  grant  an  infor- 
mation, though  the  publication  impute  fraud  to  the  prosecutor,  since 
it  is  no  more  than  is  alleged  in  every  bill  in  chancery. 

*The  defendant  (d)  complained,  in  a  writing  directed  [  *283  ] 
to  General  Wills  and  the  four  principal  officers  of  the 
Guards,  in  order  to  be  presented  to  the  king,  that  Captain  Carr, 
after  inducing  him  to  part  with  a  warrant  for  some  money  due  to 
him  from  government,  under  the  pretence  of  procuring  payment 
for  him,  received  the  mouey,  and  refused  to  pay  it  to  the  defend- 
ant.     Upon  motion  for  an  informatir^n,  the  court  held  that  the  pe^ 

-tition  was  no  libel. 

Miss  Mary  Jerome  (e),  a  Quaker,  residing  at  Nottingham,  hav- 
ing acted  in  disobedience  to  the  rules  prescribed  by  the  sect  of 
which  she  was  a  member,  by  frquenting  places  of  public  diversion, 

(a)  R.  V.  Bickerton,  Str.  498.  R.  v.  Webster,  3  T.  R.  388.  Dou' 1  270,  371. 
(J)  R.  V.  Enes,  Andr.  229.     D.  L.  L.  89. 

(c)  R.  V.  Jenneur,  Easter  8  G.  II.    Bac.  Ab.  tit.  Lib.  492. 

(d)  R.  V.  Bayley,  supra  257,  and  vol  I,  315.     Andr.  229.  3  Bac.    Ab.  tit. 

Lib.  492. 

(e)  2  Burn's  Ecclesiastical  Law  779.     Dig.  L-  L.  39. 


288  CRIMINAL  DIVISION, 

going  into  mourning  for  the  death  of  a  relation,  and  by  otlier  trans- 
gressions of  a  similar  nature,  the  society,  after  many  fruitless  re- 
monstrances and  other  useless  attempts  to  reclaim  her,  proceeded 
at  last  in  the  customary  way  to  pronounce  the  sentence  of  expul- 
sion, Tvhich,  having  been  approved  of  at  monthly  meeting,  was 
afterwards  read  by  the  defendant,  Francis  Hart,  as  clerk  of  their 
meeting.  The  sentence,  after  charging  Miss  Jerome  wiih  having 
imbibed  erroneous  notions,  contrary  to  Scripture  doc- 
[  *284  ]  trine  and  *having  acted  in  various  parts  of  her  conduct 
very  inconsistently  with  a  life  of  self-denial,  and  of  hav- 
ing neglected  to  attend  the  meetings  for  divine  worship,  and  recit- 
ing the  fruitless  attempts  of  the  society  to  reclaim  her  from  error, 
and  to  bring  her  to  the  acknowledgment  of  truth,  both  in  judgment 
and  practice,  proceeded  to  declare  her  no  longer  in  unity  with  the 
society.  IMiss  Jerome,  being  acquainted  with  this  proceeding, 
sent  her  maid  servant  to  the  defendant  for  a  copy  of  the  sentence, 
which  he  transcribed  and  enclosed  to  her  under  cover ;  but  upon 
application  to  the  court  for  an  information  against  the  defendant, 
they  refused  even  a  rule  to  show  cause. 

Next,  as  to  the  rules  prescribed  to  those  who  apply  to  the  court 
for  leave  to  file  criminal  informations.  In  general  the  applicant 
must  waive  his  right  of  action  (/)  ;  and  this  is  an  advantage 
which  the  defendant  derives  from  this  mode  of  proceeding  ;  for,  if 
convicted  under  an  indictment,  the  prosecutor  would  still  be  at  lib- 
erty to  bring  his  acdon  to  recover  damages.  Where,  however,  the 
court,  on  hearing  the  whole  matter,  are  of  opinion  that 
[  *285  ]  it  is  a  proper  subject  for  an  *action,  they  will  give  the 
party  leave  to  bring  (c/)  it. 

The  court  (A)  will  not  grant  an  i;jformation,  unless  the  applica- 
tion be  made  recently  after  the  cause  of  complaint  shall  have 
arisen  (?). 

(/)  R-  V.  Sparrow,  2  T.  R.  198.  The  prosecutor  may  be  pnt  to  his  elec- 
tion before  information  granted  ;  after  that  lime  it  is  of  course  to  slay  proceed- 
ings in  an  action  for  the  same  libel.     lb. 

{g:  2  T.  R.  198.  {h)  Bac.  Ab.  tit.  Libel  492. 

(?)  Prideaux  v.  Aithiir,  LofTt  393  An  application  for  a  criminal  inlbrmation 
against  a  magistrate  must  be  made  so  early  in  the  second  term  after  the  offence, 
as  to  enable  him  to  shew  cause  in  that  term.     R.  v.  Marshall,  13  East.  332. 


PROCEEDING  BY  INFORMATION.  285 

Where  tlie  same  libel  reflects  on  several,  it  is  not  necessary  that 
all  should  join  in  the  applicaiion,  or  that  the  names  of  all  should  be 
specified,  since  the  conviction  on  one  information  would  be  a  bar  to 
anv  other;  it  being  one  single  offence,  though  every  person  injured 
would  severally  be  cntitlfd  to  maintain  an  action  (k). 

The   application  must  be  accompanied  with  affidavits,  clearly  and 
specifically  stating  the  circumstances  of  the  case  (I)  ;  these  ought 
not  to  be  entitled,  and  if  they  are,  cannot  be  read  :  those 
•produced,  on  showing  cause,  may  (m)  or  may  not  be     [  *286  ] 
entitled  ;  but  all  affidavits,  after  the  rule  is  made  absolute, 
must  be  entitled  (w). 

On  a  motion  for  an  information  against  A.  an  affidavit,  in  a  motion 
against  B.,  cannot  be  read,  since  the  person  who  made  it  would  not 
be  liable  to  an  indictment  for  perjury,  though  it  should  be  false  (o). 
But  in  the  case  of  the  Ki7ig  v.  Joliffe  (2;),  a  criminal  information 
having  been  granted  against  the  defendant,  he,  before  the  trial  at 
Nisi  Prius,  distributed  hand-bills  in  the  assize  town,  vindicating  his 
own  conduct,  and  reflecting  upon  the  prosecutor's.     This  matter  be- 
ing disclosed  to  the  judge  at  Nisi  Prius,  was  held  to  be  a  sufficient 
ground  to  put  off  the  trial ;  and  that  affidavit  having  been  returned 
to  the  court  of  King's  Bench,  another  information  was  granted  on  it 
against  the  defendant ;   the  affidavit  taken  at  Nisi  Prius  being  con- 
sidered as  taken  under  the  authority  of  the  court  above.     The  affi- 
davit should  set  forth  the  libel  (5),  its  application,  and 
the  fact  of  *publication  by  the  person  against  whom  the     [  *287  ] 
information  is  prayed. 

And  where  the  application  of  the  libellous  matter  is  indifferent, 
the  court  has  refused  to  grant  the  information,  saying,  that  they 
required  a  seeming  and  apparent  application  to  be  made  (r).     A. 

R.  V.  Taylor,  Nolan  204.  And  it  seems  that  such  an  application  would  not  be 
allowed  in  the  2nd  term,  where  an  assize  had  intervened.  R.  v.  Ilerries,  13 
East.  270,  and  see  R.  v.  Bishop,  5  B.  and  A.  512. 

{k)  R.  I'.  Griffin,  R.  T.  Hardw.  39. 

(0   Prif'eaux  v.  Arthur,  LofTt.  393. 

(m)   1  Str.  704.     Andr.  313.  (n)  6  T.  R.  642. 

(0)   II  Mod.  141.  ip)iT.  R.  285. 

(q)  It  is  sufficient  to  set  forth  a  copy  of  the  libel,  without  annexing  the  libel 
itself.     R.  V.  Chappel,  Burr.  402. 

(r)  Fitzgibb.  57.  pi.  7.  D.  L.  L.  97.     Bac.  Ab,  tit.  Lib.  493. 


287  CRIMINAL  DIVISION. 

stated  in  his  affidavit,  that  B.  had  brought  him  a  challenge  from  C. 
and  that  B.  had  refused  to  make  affidavit  that  C.  had  sent  it ;  but 
the  court  held  this  evidence  to  be  insufficient  to  warrant  them  in 
granting  a  rule  nisi  for  a  criminal  information  against  C  (s). 

It  has  frequently  (0  been  decided,  that  it  is  necessary  for  the 
party  praying  an  information  to  produce  an  exculpatory  affidavit, 
denying  the  truth  of  the  charge,  since  though  the  truth  be  no  ground 
of  justification  on  an  indictment  for  a  libel,  yet  it  is  a  sufficient  rea- 
son why  the  court  should  not  interfere  in  an  extraordinary  way. 
But  though  the  court,  in  general,  require  that  the  affidavit  shall  di- 
rectly (ii)  and  pointedly  aver  *the  prosecutor's  innocence 
[  *288  ]  of  the  charge,  the  rule  admits  of  some  exceptions :  as 
where  the  party  charged  is  abroad,  and  then  the  person 
making  the  application  in  his  behalf  is  expected  go  as  far  in  his 
affidavit  as  the  nature  of  the  case  admits  of,  by  swearing  to  letters 
or  other  intelligence  within  his  reach  (a;). 

So  where  the  charge  is  general  (?/),  no  exculpatory  affidavit  is 
required,  since  it  would  be  absurd  to  require  a  man*  to  swear  that  he 
was  not  a  traitor  or  a  thief:  neither  is  it  necessary  where  the  party 
is  accused  of  having  used  criminal  language  in  parliament,  since  by 
the  express  provision  of  the  Bill  of  Rights,  what  passes  there  can- 
not be  questioned  elsewhere  (2). 

Where  a  libel  stated  that  the  Duke  of  Athol  was  held  in  such 
general  abhorrence  in  the  Isle  of  Man,  if  he  should  obtain  an  act, 
then  depending  in  '  parliament,  it  would  occasion  («)  a  revolt,  the 
court  held,  that  no  affidavit  from  the  duke  was  necessary. 

Where  the  libel  reflects  on  a  public  body  of  men,  an  infor- 
mation will  be  granted,  without  any  exculpatory   affidavit,   on   an 

(s)  R.  V.  Willet,  6  T.  R.  294. 

{t)  Str.  498.  Andr.  229.  3  Bac  Ab.  tit.  Lib.  492.  Barnard.  K.  B.  13.  R.  v. 
Miles,  Doug.  184.  R  v.  Wright,  2  Chitty  162.  So  an  information  was  refused 
to  the  first  sender  of  a  challenge.     R-  v.  Hankey,  1  Burr.  316 . 

(u)  R.  V.  Miles,  Doug.  283.  It  is  usual  to  negative  the  charge  in  the  words 
of  the  charge.     R.  v.  Wright,  2  Chitty's  Rep.  162. 

(a)  R.  V.  Bate,  Doug.  387. 

(y)  R.  V.  Bate,  Doug.  387.     R.  v.  Haswell,  ib. 

(z)  1  W.  and  M.  sess.  2,  c.  2,  art.  9. 

(a)  Doug.  387,  in  the  note. 


PROCEEDING  BY  HsFORMATION.  289 

affidavit,  stating  the  *purchase  of  the  newspaper  contain-     [  *289  ] 
ing  the  libel,  and  that  the  defendant  was  the  publisher  or 
proprietor  of  the  paper  (6). 

After  the  rule  to  show  cause  has  been  granted  upon  the  prosecu- 
tor's affidavits,  it  seems  that  affidavits  iii  confirmation  may  be  pro- 
duced ;  but  that  a  supplementary  affidavit,  if  introductory  of  new 
matter,  is  not  admissible :  but  if  the  new  affidavit  be  partly  con- 
firmatory and  partly  consist  of  new  matter,  the  court  will  not  wholly 
reject  it,  but  distinguish  between  (c)  what  is  new  and  what  is  con- 
firmatory. Though  the  affidavits  of  the  prosecutor  should  be  contra- 
dicted by  those  of  the  defendant,  in  some  circumstances,  the  court 
will  nevertheless  grant  the  information,  if  strong  probable  ground  be 

laid  (cZ). 

The  defendant  (e)  showed  for  cause  against  a  rule  for  an  informa- 
tion, that  the  charge  of  perjury  on  which  the  motion  was 
founded  was  true  ;  but  'Sir  J.  Pratt,  C.  J.  said,  "In  [  '290  ] 
all  cases,  informations  for  libels  go,  unless  you  can  show 
the  court  some  rn'obable  cause  for  them  to  believe  you  did  not  pub- 
lish it.  Now,  if  you  had  denied  ir,  it  would  have  signified  nothmg  ; 
for  then  affidavit  stands  against  affidavit ;  therefore^  the  information 
shall  go,  that  the  fact  may  be  tried."  And  Fortescue,  J.  said,  "  It 
would  be  a  strange  thing,  if  a  man  should  be  allowed  to  justify 
when  an  informaiion  is  prayed  against  him,  and  should  not  be  allow- 
ed to  justify  in  ihe  information  itself  when  it  is  gone." 

But  in  the  case  of  the  King  v.  Bickerton,  the  chief  justice  de- 
clared, that,  though  truth  be  no  justification  for  a  libel,  as  it  is  for 
defamatory  words,  yet  it  will  be  sufficient  cause  to  prevent  the  ex- 
traordinary interposition  of  the  court,  and  induce  them  to  leave  it 

(b)  R.  V.  Williams,  5  B.  and  A.  595,  for  a  libel  on  the  clergy  of  the  diocese  of 
Durham.     So  also  in  the  case  of  R.  ..  Jenour,  13  G.  II ;  R-  v.  Alderion,  28  U 
II   R.  ..  Holloway  and  Allen  15  G.  III.  for  publishing  a  libel  on  the  )usices  ot 
the  peace  for  the  county  of  Middlesex,  in  a  pamphlet  called  the  Wit  1  rap, 
charging  them  with  ignorance  and  corruption  in  the  execution  of  their  ottice. 

(d  The  King  v.  Kinaslon,  2  Kel.  178.     Dig.  L.  L.  55. 

(d)  The  King  v.  Haswell  and  Bate,  Doug.  372. 

\e)  The  Kmg  ..  Dormer,  Barnard.  K.  B.  13.     Dig.  L.  L.  77.     R-  v.  Draper, 
3  Smith  391. 


290  CRIMINAL  DIVISION. 

to  the  ordinary  course  of  justice  before  a  grand  jury  (/).     And 
with  this  doctrine  the  modern  practice  has  conformed. 

The  prosecutor  (^)  founded  his  application  upon  an  affidavit,  stat- 
ing, that  the  defendant  confessed  to  him  the  publication  of  the  libel ; 
on  the  other  hand  it  was  shown,  that  the  defendant  never  made  any 
such  confession,  yet,  since  the  fact  of  pubhcafcion  was  not   denied, 

the  information  was  granted. 
[  *291  ]         *By  a  rule  E.  T.  5  G.  II.  where  a  person  has  obtain- 
ed a  rule  nisi  for  a  criminal  information,  and  upon  show- 
ing cause  the  rule  is  discharged,  the  party  who  (7t)  made  the  motion 
shall  pay  the  costs.     But  this  has  been  held  to  be  discretionary. 

A  joint  information  against  several  cannot  be  founded  on  distinct 
rules  for  informations  against  each  (t). 

When  an  information  if  filed  by  leave  of  the  court,  it  is  provided 
hj  St.  4  and  5  W.  and  M.  c.  18,  s.  2,  that,  where  the  defendant  is 
acquitted,  the  court  shall  be  authorized  to  award  costs  to  the  defend- 
ant, unless  the  judge  shall,  at  the  trial,  certify  that  there  was  rea- 
sonable causco  But  it  has  been  held  to  be  compulsory  on  the  court 
to  grant  costs  to  the  defendant  in  case  of  his  acquittal,  no  cenificate 
having  been  granted.  The  certificate  must  be  granted  at  the  trial, 
and  it  is  afterwards  too  late  to  inquire  whether  there  was  probable 

cause  for  the  prosecution  (^). 
£  *292  ]         The  process  which  has  been  issued  in  case  of  *libel  has 
been  either  against  the  person  of  the  offender  or  his 
papers. 

1.  Against  the  person. 

The  defendant (Z),  Derby,  having  been  committed  upon  the  war- 
rant of  a  secretary  of  state,  for  publishing  a  seditious  libel,  called 
the  Observator,  No.  74,  was  brought  before  Chief  Justice  Parker, 
hj  habeas  corpus,  and  by  him  discharged  upon  entering  a  recogni- 
zance to  appear  on  the  first  day  of  term.     Upon  that  day  the  de- 

(/)  R.  V.  Bickerton,  Str.  498.  (g)  R.  v.  Sharp,  Andr.  384. 

(A)  See  2  Kel.  61.  pi.  8.  Dig.  L.  L.  97.  Where  a  complaint  for  an  infor- 
maiion  against  a  justice  of  the  peace  proved  to  be  frivolous,  the  attorney,  as 
well  as  the  complainant,  was  ordered  to  pay  the  costs.  Rex  v.  Fielding,  2 
Burr.  654.     2  Ld.  Kenyon  386.  (i)  R.  v.  Haydon,  3  Burr.  1270. 

(k)  R.  V.  Woodfall,  2  Str.  1131.     Dig.  L.  L.  98. 

(/)  R.  V.  Derby,  Fortescue  140.     Dig.  L.  L.  31- 


PROCEEDING  BY  INFORMATION.  292 

fendant  took  several  exceptions  to  the  commitment,  and  moved  to 
be  discharged,  insisting,  ptincipally,  that  the  commitment  previous 
to  indictment,  presentment,  and  conviction  for  the  offence  imputed 
to  him,  -was  illegal  and  contrary  to  st  25  E.  III.  st.  5,  c  -I ;  but 
the  court  held  that  he  was  not  entitled  to  his  discharge. 

John  Wilkes  (w)  was  committed  upon  a  secretary  of  state's  war- 
rant for  writiniT  a  seditious  libel,  entitled  "  The  North  Briton,"  No. 
45.  He  was  afterwards  brought  up  by  habeas  corpus,  into  the 
Court  of  Common  Pleas,  and  being  (n)  privileged 
*as  a  member  of  the  House  of  Commons,  was  discharged  [  *293  ] 
without  bail. 

In  the  above  case  (o)  the  court  considered  the  warrant  of  a 
secretary  of  state  to  be  of  the  same  force  with  that  of  a  justice  of 
the  peace,  and  that  neither  a  secretary  nor  justice  ought  to  issue  a 
warrant  upon  his  own  private  knowledge  ;  but  that  it  was  unnecessary 
to  state  upon  the  face  of  the  warrant  the  evidence  upon  which  it 
was  granted,  or  even  to  state  in  the  warrant  that  it  was  granted 
upon  any  charge  made.  And  in  the  same  case  it  was  held,  that  the 
words  contained  in  the  warrant  "  for  being  the  author  and 
publisher  of  a  most  infamous  and  seditious  libel,  'entitled  [  *294  ] 
"  The  North  Briton,"  was  a  sufficient  description  of  the 
offence,  since  it  was  known  specifically  by  that  name. 

(m)  2  Wilson  159. 

(n)  By  the  resolutions  of  both  houses  of  parliament,  it  has  been  decided, 
that  privilege  does  not  lie  in  the  case  of  a  seditious  libel.  Journal  of  the  Lords, 
Die  Martis,  29  Novembris,  1763, 

The  3rd  resolution  of  the  House  of  Commons  was  read—"  Resolved,  by  the 
Commons  in  Parliament  assembled,  that  privilege  of  Parliament  does  not  ex- 
tend to  the  case  of  writing  and  publishing  seditious  libels,  nor  ought  to  be  al- 
lowed to  obstruct  the  ordinary  course  of  the  laws,  in  the  speedy  and  effectual 
prosecution  of  so  heinous  and  dangerous  an  offence,"  and  it  being  moved  to 
agree  with  the  Commons  in  the  said  resolution,  it  was,  after  a  long  debate,  re- 
solved in  the  affirmative.  In  the  case  of  Burdett  v.  Abbott,  14  East.  1.  5 
Dow.  165.  4  Taunt.  401,  which  was  an  action  against  the  speaker  of  the 
House  of  Commons  for  trespass  and  false  imprisonment,  it  was  held  that  the 
speaker  of  the  House  of  Commons  might  lawfully  commit  a  member  of  that 
house,  in  pursuance  of  an  order  of  the  house  to  that  effect,  upon  a  resolution  of 
the  house,  that  the  plaintiff  had  been  guilty  of  a  breach  of  privilege,  in  printing 
a  libellous  and  scandalous  paper,  reflecting  on  the  just  rights  and  privileges  of 
that  house.  (o)SeeDig.  L.  L.51. 

Vol.  IL  88 


294  CRIMINAL  DIVISION. 

In  the  case  of  Butt  v.  Conant  Qj),  the  authority  of  a  justice  of 
the  peace  to  issue  his  warrant  against  the  publisher  of  a  libel,  and  to 
commit,  in  default  of  sureties,  was  much  discussed,  and  after  a  con- 
sideration of  all  the  previous  precedents,  it  was  decided  that  justices 
of  the  peace  have  such  authority,  as  well  in  the  case  of  libel  as  of 
all  other  offences,  over  which,  as  justices,  they  have  jurisdiction. 

In  the  above  case,  the  libel  reflected  on  the  characters  of  two 
noblemen,  the  Late  Lord  Ellenborough,  C.  J.  and  Lord  Castlereagh 
But  it  seems  to  be  clear  that  the  general  doctrine  there  laid  down 
would  apply  to  all  cases  of  libels,  whether  they  were  illegal,  as  re- 
flecting on  the  characters  of  individuals,  or  for  any  other  mischievous 

tendency,  aifecting  the  public  (§'). 
[  *295  ]  *In  Leach's  case  (/•)  the  warrant  from  the  secretary  of 
state  was  couched  in  the  following  terms  :  "  These  are, 
in  his  Majesty's  name,  to  authorize  and  require  you  (the  messen- 
gers), taking  a  constable  to  your  assistance,  to  make  a  s  rict  and 
diligent  search  for  the  authors,  printers,  and  publishers  of  a  seditious 
and  treasonable  paper,  entitled  '  The  North  Briton,'  No.  45,  and 
them,  or  any  of  them,  having  found,  to  apprehend  and  seize,  to- 
gether with  their  papers,  and  bring  in  safe  custody  before  me,  to  be 
examined  concerning  the  premises,  and  further  dealt  with  according 
to  law."  The  messengers,  under  this  warrant,  seized  Mr.  Leach 
and  imprisoned  him  for  some  time  ;  but  on  its  being  found  that  he 
was  neither  author,  printer,  nor  publisher,  he  was  discharged  by  the 
Earl  of  Egremont's  order,  without  even  having  appeared  before  him. 
After  a  verdict  for  the  plaintiff,  the  defendants  carried  the  matter, 
by  a  bill  of  exceptions,  to  the  court  of  King's  Bench,  when  the 
single  point  decided  was,  that  the  defendants  could  not  justify,  in- 
asmuch as  they  had  not  acted  in  obedience  to  the  warrant  (s). 

(p)  1  B.  and  B   548. 

(q)  The  publishers  and  distributors  of  impious  and  seditious  libels  may  be 
immediately  taken  up  and  held  to  bail.  It  is  not  necessary  to  stand  by  and  see 
the  mischief  spreading  without  attempting  to  interrupt  its  progress  ;  it  would 
be  a  reproach  to  the  laws  of  the  country  if  it  were  so  ;  and  if  the  magistrates 
might  not  arrest  the  torch  in  the  incendiary's  hand,  and  before  it  had  set  fire  to 
the  building.  Per  Leycester,  J.  in  his  charge  to  the  jury,  Carnarvon  Summer 
Ass.  1819. 

(r)   11  St.  Tr.  307. 

(s)  By  a  resolution  of  the  House  of  Commons  it  was  declared,  that  general 


PROCEEDING  BY  INFORMATION.  298 

*lt  is  enacted  bj^ilie  43  G.  III.  c.  58,  s.  1.—"  That  [  *296  ] 
whenever  any  person  is  charged  with  any  offence  for 
•which  he  may  be  prosecuted  by  indictment  or  information  in  the 
King's  Bench  (not  being  treason  or  felony),  and  the  same  sha'l  be 
made  to  appear  to  any  judge  of  the  same  by  affidavit  or  by  certifi- 
cate of  the  indictment  or  information  being  filed  against  such  person 
in  the  said  court  for  such  offence,  such  judge  may  issue  his  warrant 
under  iiis  hand  and  seal,  and  thereby  cause  such  person  to  be  ap- 
prehended and  brought  before  him  or  some  other  judge  of  the  same 
court,  or  before  some  one  justice  of  the  peace,  in  order  to  his  being 
bound,  with  two  sureties,  as  the  said  warrant  shall  express,  with  con- 
dition to  appear  in  the  said  court  at  the  time  mentioned  in  the  said 
warrant,  and  to  answer  all  and  singular  indictments  or  informations 
for  any  such  offence  ;  and  if  he  shall  neglect  or  refuse  to  become  so 
bound,  such  judge  or  justice  may  respectively  commit;  him  to  the 
common  gaol  of  the  county,  city,  or  place,  where  the  ofience  shall 
have  been  committed,  or  where  he  shall  have  been  apprehended, 
there  to  remain  until  he  shall  become  bound  as  aforesaid,  or  be  dis- 
charged by  order  of  the  said  court,  in  term  time,  or  by  one  of  the 
judges  of  the  said  court,  in  vacation  ;  and  the  recognizance  to  be 
thereupon  taken  shall  be  returned  and  filed  in  the  said 
*court,  ai^d  shall  continue  in  force  until  such  person  shall  [  *297  ] 
have  been  acquitted  of  such  oflfence,  or  in  case  of  convic- 
tion, shall  have  received  judgment  for  the  same,  unless  sooner  de- 
clared by  the  said  court  to  be  discharged."  And  the  same  act  fur- 
ther provides,  "  That  in  case  any  defendant  be  committed,  either  by 
virtue  of  such  warrant,  or  by  virtue  of  any  writ  of  capias  ad  respon- 
dendum, for  want  of  bail,  a  copy  of  the  indictment  or  information 
shall  be  delivered  to  him  or  to  his  gaoler,  with  notice  that  unless  he 
shall  within  eight  days  enter  an  appearance,  plea,  or  demurrer,  to 
such  indictment  or  information,  an  appearance  and  the  plea  of  not 
guilty  will  be  entered  in  his  name  ;  and  that  if  such  defendant  shall 
neglect  eight  days  to  enter  an  appearance,  and  to  plead  or  demur, 
the  prosecutor  may,  on  affidavit  of  the  service  of  the  copy  and  notice 

warrants  in  the  case  of  libel  are  illegal.  Journ.  Comra.  22  Ap.  1766.  And 
such  were,  by  a  subsequent  resolution,  declared  to  be  illegal  in  all  cases.  lb. 
25  Ap.  1766. 


297  CRIMINAL  DIVISION. 

enter  an  appearance  and  the  plea  of  not  guilty,  and  proceed  in  the 
usual  course  :  and  that,  upon  acquittal,  the  ju^ge  before  whom  the 
trial  is  had  (though  not  a  judge  of  the  King's  Bench)  may  order 
such  defendant  to  be  discharged  out  of  custody  as  to  his  aforesaid 
commitment." 

With  respect  to  the  seizure  of  papers,  it  is  said  to  have  been  re- 
solved, by  all  the  judges,  that  where  persons  write,  print,  or  sell  any 
pamphlet,  scandalizing  the  public  or  private  persons,  such 
[  *298  ]     *books   may  be    seized,   and   the  person   punished   by 

law(0. 

The  practice  of  issuing  a  general  warrant  to  seize  the  papers  of 
a  suspected  person,  appears  to  have  been  frequently  resorted  to,  in 
former  times,  with  great  abuse,  of  -which  the  case  of  Lord  Coke 
himself  furnishes  an  instance  ;  whose  papers  were  seized  and  carried 
to  the  secretary's  ofBce,  with  some  valuable  securities,  which  were 
never  returned  to  him  (m).  Insignificant  however  is  a  loss  of  such 
a  nature  when  compared  with  the  more  serious  evils  incident  to  such 
a  procedure,  the  grievous  invasion  of  domestic  peace  and  security, 
and  the  facility  with  which  a  person  might  be  made  responsible  for 
the  contents  of  writings  never  in  his  possession,  or  deprived  of  those 
necessary  for  the  purpose  of  his  defence. 

A  warrant  (a;)  was  issued  in  tiie  name  of  the  Duke  of  I^wcastle, 
one  of  the  secretaries  of  state,  directed  to  two  of  the  King's  mes- 
sengers, requiring  them,  taking  a  constable,  to  make  a  diligent 
search  in  the  house  of  Dr.  Earburv,  the  author  of  a  treasonable  paper 
entitled  "  The  Royal  Oak  Journal,"  for  all  papers  of 
[  *299  ]  whatsoever  *kind  in  his  custody,  and  to  bring  the  said 
papers  before  him  ;  the  messengers,  without  taking  a  con- 
stable to  their  assistance,  entered  the  defendant's  house,  seized 
his  papers,  and  brought  them  before  Mr.  De  La  Faye,  who  was  the 
duke's  secretary  and  a  justice  of  the  peace. 

The  defendant  afterwards  applied  to  the  Court  of  King's  Bench 
to  have  his  papers  restored  to  him,  insisting  that  a  secretary  of  state 
could  not  legally  grant  a  warrant  to  seize  a  person's  papers.  Lord 
C.  J.   Hardwicke  said,  that  as  to  seizing  the  defendant's  papers  he 

(0  4  Read.  St.  Law  154.  (m)  Dig.  L.  L.  33. 

(*)  2  Barnard.  K.  B.  346.     Dig.  L.  L.  33. 


PROCESS— SEIZURE  OF  PAPERS.  299 

•would  not  give  any  opinion  whether  it  was  legal  or  not ;  that  the 
court  of  King's  Bench  could  not  grant  a  rule  upon  the  messenger 
who  did  seize  them  to  restore  them,  and  therefore  that  the  question 
was  not  properly  before  the  court  for  their  determination. 

But  in  the  great  case  (?/)  of  the  seizure  of  papers,  it  Avas  decided 
that  a  secretary's  warrant  to  search  for  papers  was  illegal ;  and  Ld. 
Camden,  C.  J.  observed,  ''  If  this  point  should  be  determined  in 
favour  of  the  jurisdiction,  the  secret  cabinets  and  bureaus  of  every 
subject  in   the  kingdom  will  be  thrown  open  to  the  search   and  in- 
spection  of  a   messenger,    whenever    the   secretary  of 
*state  shall  think  fit  to  charge  or  even  suspect  a  person  to     [  *300  ] 
be  the  author,  printer,  or  publisher  of  a  seditious  libel. 
This  power  so  assumed  by  a  secretary  of  state,  is  an  execution  upon 
all  the  parties'  papers  in  the  first  instance  ;  his  house  is  rifled— his 
most  valuable  secrets  wrested  out  of  his  possession,  before  the  paper, 
for  which  he  is  charged,  be   found  criminal  by  any  competent  juris- 
diction, and  before  he  is  convicted  either  of  writing,  publishing,  or 
being  concerned  in  the   paper.     This  power  of  the  secretary  is  not 
supported  by  one  single  citation  from  any  law   book  extant— it  is 
claimed  by  no  magistrate  in   the  kingdom  but  himself.     Papers  are 
the  owner's  goods  and  chattels,— they  are  his  dearest  property,  and 
are  so  far  from  enduring  a  seizure,  that  they  will  hardly  bear  an  in- 
spection ;  and  though  the  eye  cannot,  by  the  law  of  England,  be 
guilty  of  a  trespass,  yet  where  private  private  papers  are  removed 
and  carried  away,  the  secret  nature  of  the  goods  will  be  an  aggra- 
vation of  the  trespass,  and  demand  more  considerable  damages  in 
that  respect.     Where   is  the  written  law  that  gives  any  magistrate 
such  a  power  ?     I  can  safely  say  there  is  none  ;  and  therefore  it  is 
too  much  for  us,  without  such  authority,  to  pronounce  a  practice  to 
be  legal,  which  would  be  subversive  of  all  the  comforts  of  soci- 

ety."° 

''  There  is  no  authority  to  show  that  libels  *might  be     [  *301  ] 
seized,  except  the  opinion  of  the  twelve  judges,  at  the 
close  of  the  reign  of  C.  II. ,  who  gave  it  as  their  opinion,  that  no  one 
could  legally  expose  to  the  public  any   thing  that  concerned  the  af- 

(y)  Enuck«.   Carrington  and  others,  11  St.  Tr.   317.  19  Howell's  St.  Tr. 
1029. 


801  CRIMINAL  DIVISION. 

fairs  of  the  public,  -without  license  from  the  King.  This  was  quoted 
bj  C.  J.  Scroggs,  on  the  trial  of  Harris  for  a  libel,  who  extended 
the  doctrine  to  the  seizure  of  all  books,  pamphlets,  and  Avridngs,  on 
matters  of  public  concern." 

And  again,  "  It  is  urged  as  an  argument  of  utility,  that  such  a 
search  is  a  means  of  detecting  offendc:rs  by  discovering  evidence.  I 
■wish  some  case  had  been  shown  where  the  law  forceth  evidence  out 
of  the  owner's  custody  by  process." 

"  In  the  criminal  law  such  a  proceeding  was  never  heard  of;  and 
yet,  there  are  some  crimes,  such,  for  instance,  as  murder,  rape,  rob- 
bery, and  housebreaking,  to  say  nothing  of  forgery  and  pcjury,  that 
are  more  atrocious  than  libelling  ;  but  our  law  has  provided  no  paper 
search  upon  those  occasions  to  help  forward  the  conviction.  Wheth- 
er this  proceedeth  from  the  gentleness  of  the  law,  or  from  the  con- 
sideration that  such  a  power  would  be  more  pernicious  to  the  innocent 
than  useful  to  the  public,  I  will  not  say." 

"  Observe  the  wisdom  as  well  as  the  mercy  of  the  law.  The 
strongest  evidence  before  trial,  being  only  ex  parte^  is 
[  *302  ]  but  suspicion, — it  is  not  *proof :  weaker  evidence  is  a 
ground  of  suspicion ;  though  in  a  lower  degree  :  and  if 
suspicion  at  large  should  be  a  ground  of  search,  especially  in  case  of 
libels,  whose  house  would  be  safe  ?  Upon  the  whole,  we  are  of  opin- 
ion, that  the  warrant  to  seize  and  carry  away  the  parties'  papers  in 
case  of  a  seditious  libel,  is  illegal  and  void." 

And  the  House  of  Commons  (2)  afterwards  came  to  a  resolution, 
declaring  the  seizure  of  papers,  in  the  case  of  libel,  to  be  illegal. 

Since  a  criminal  proceeding  is  in  its  nature  local,  the  offence  must 
be  laid  and  proved  to  have  been  committed  in  the  county  within 
which  the  bill  (a)  is  preferred.  And  the  indictment  may  be  tried 
at  the  quarter  sessions,  before  the  justices  of  the  peace  as  well  as 
before  the  justices  of  Oyer  and  Terminer  (h). 

With  respect  to  the  technical  mode  of  framing  an  information  or 
indictment,  little  remains  to  be  added  to  the  observations  already 
made  on  the  subject  of  the  declaration  (c). 

(z)  Jour.  Cninm.  25lh  April,  176G. 

(G)  4  Read.  St.  Law  155,     8  Mod.  328.     Dig.  L.  L.  97  infra,  tit.    Evidence. 

(b)  Haw.       8.  s.  88.     R.  v.  Summers,  1  Lev.  193.  (c)  Supra  vol.  I. 


INDICTMENT.  302 

All  who  are  in  any  way  concerned  in  the  composition,  writing,  or 
printing  of  the  libel,  with  a  view  to  publication,  mny  be 
joined  in  the  information  *or  indictment,  and  charged  as     [  *303  ] 
principals  (cZ). 

It  is  not  necessary  to  allege  that  the  matter  published  is  false  ; 
such  an  allegation  need  not  be  proved,  though  it  be  made  on  the 
record  (e)  ;  but  the  illegality  of   the  publication  must  be  averred 
by  means  of  the  word  maliciously,  or  by  some  equivalent  term  (/). 
In  an  indictment,  as  well  as  in  a  declaration,  the  averment  of 
extrinsic  facts  is  unnecessary,  where   the  criminal  quality  of  the 
publication  may  be  collected  from  the  contents;   such  averments 
are  essential  where  the  terms  of  the  libel  are  independently  cf  par- 
ticular extrinsic  facts,  innocent  or  unmeaning,  but  are  in  reality- 
noxious  and  illegal,  in  connection  with  the  facts  to  which  they  re- 
late.    The  mode  of  averring  such  extrinsic  circumstances,  and  ex- 
plaining the  sense  of  the  libel  in  its  connection  with  those  facts,  by 
means  oi  the  ordinary  technical  links,  has  already  been 
so  far  remarked  upon  that  further  comment  *is  perhaps     [  *304  ] 
unnecessary.     Where  an  information  alleged  that  a  libel 
was  published  of  and  concerning  the  government,  and  the  libel  was 
written  in  such  terms,  that  an  ordinary  person,  on  reading  it,  would 
understand  that  it  was  written  of  the  government  of  the  country, 
it  was  held,  that  any  extrinsic  allegation,  for  the  purpose  of  ex- 
plaining the   meaning,  was  unnecessary  (^).     And  where  the  in- 
formation alleged  that  the   defendant,  with  intent  to   insinuate  and 
cause  it  to  be  believed,  that  divers  liege  subjects  of  the  Kmg,  had 
been  inhumanly  cut  down,  maimed,  and  killed,  by  certain  troops  of 
our  lord  the  King,  unlawfully  and  maliciously  published  a  libel  of 
and  concerning  the  government  of  this  realm,  and  of  and  concern- 
ing the  said  troops,  and  the  only  innuendo  was  applied  to  the  word 

(d)  !•:.  V.  Benfield,  2  Burr.  983,  pi.  3,  it  was  held,  that  a  joint  information 
lay  against  two,  for  singing  a  libellous  song  on  A.  and  B.,  vvhich  abused  first 
A  Tnd  then  B.  ;  and  it  was  held,  that  if  each  had  sung  separate  stanzas,  the 
one  reflecting  on  A.;  the  other  on  B.;  the  offence  would  still  have  been  joint. 

(e)  R.  V.  Burke,  7  T.  R.  4. 

(/)  Sty.  392,  per  Roll.  C.  J.    1  Vin.  Ab.  533. 
(g)  R.  V.  Burdett,  4  B.  and  A.  314- 


304  CRIMINAL  DIVISION. 

dragoons  in  the  libel,  meaning  the  said  troops  of  our  said  lord  the 
King,  and  meaning  thereby,  that  divers  liege  subjects  of  our  lord 
the  King  had  been  inhumanly  cut  down  and  killed  by  the  said 
troops  of  our  said  lord  the  King  ;  it  was  held,  on  motion  in  arrest 
of  judgment,  that  this  was  sufficiently  certain,  without  specifying 
•what  particular  troops  were  meant  (k). 

(h)  lb.;  and  see  R.  v.  Home,  Cowp.  682  supra,  vol.  I.  p  391.  To  the  illus- 
trations already  adduced,  v.  I.  p.  407,  to  show  the  nature  and  use  of  prefatory 
avermenis  and  innuendoes,  may  be  added  the  following  : — Goldstein  v.  Foss,  6 
B.  and  C.  152.  In  the  introductory  part  of  the  declaration,  it  was  alleged,  that 
the  plaiiitiif  was  the  secretary  of  a  society  called  "  The  Society  of  Guardians, 
for  the  protection  of  Trade  against  Swindlers  and  Sharpers,"  and  the  nature 
and  object  of  the  society  was  also  averred  ;  the  declaration  then  alleged  the 
publishing  of  the  libel,  as  a  printed  report,  by  the  secretary,  containing,  {inter 
alia,)  that  the  plaintiffs  were  reported  to  the  society  as  improper  to  be  pro- 
posed to  be  balloted  for  as  members  thereof,  with  an  innuendo,  thereby  then 
and  there  meaning  that  the  plaintiff  was  a  swindler  and  sharper,  and  an  improp- 
er person  to  be  a  member  of  the  said  society.  And  it  was  held,  on  a  motion  in 
arrest  of  judgment,  that  the  libel  was  not  sufficiently  connected  with  the  intro- 
ductory matter,  and  that  without  such  matter  the  words  were  not  in  themselves 
actional)]e. 

In  the  case  of  Slockley  v.  Clement,  4  Bingh.  162,  the  first  count  alleged, 
that  the  plaintiff  was  lawfully  possessed  of  a  bill  of  exchange,  accepted  by 
Frances  Page  Turner,  widow  ;  that  such  acceptance  was  a  true  and  genuine 
acceptance,  and  that  the  defendant,  intending  to  charge  the  plaintiff' with  having 
forged  and  feloniously  uttered  the  said  bill  of  exchange,  published  of  and  con- 
cerning the  said  plaintiff  and  the  said  bill  of  exchange,  the  following  libel  : — 

"To  bill-brokers  and  others — caution — reward — Whereas  information  has 
been  given  to  me,  that  attempts  have  been  made  to  obtain  the  discount  of  a  bill 
of  exchange,  bearing  date,  London,  May  26th,  1825,  and  purporting  to  be 
drawn  by  one  John  Stuckley,  upon  and  to  be  accepted  by  the  Dowager  Lady  P. 
Turner,  for  jCUOOO,  with  interest,  payable  twelve  months  after  dale,  to  the  order 
of  tiie  said  J.  Stockley. — I  do  hereby  give  notice,  on  behalf  of  the  Dowager 
Lady  P.  Turner,  that  she  has  not  accepted  such  bill,  and  that  if  her  name 
should  appear  on  any  such  instrument,  the  same  has  been  forged  ;  or  her  hand- 
wriiing  to  the  said  acceptance  of  the  said  bill,  if  genuine,  has  been  obtained  by 
fraud,  in  total  ignorance  on  her  part,  of  the  intended  effect  of  the  signature. 
Any  person  who  will  give  positive  information  to  me  of  the  party  in  possession 
of  the  sad  instrument,  shall  be  handsomely  rewarded.     Thomas  Binns." 

After  a  verdict  for  the  defendant,  the  court  held,  that,  at  all  events,  the  action 
could  not  be  supported  without  an  innuendo,  instating  the  alleged  libel,  applying 
the  charge  to  the  plaintiff. 

The  court  also  intimated  a  strong  opinion,  that,  even  with  an  innuendo,  the 


INDICTMENT.  S04 

'Unless  a  libellous  and  criti.inal  meaning  be  cither  ap      [  *30o  ] 
parent  on   the  face    of  the   alle.^cd  libel,  or  *can  be  col-     [ 'oOl3  ] 
Icctid  from  the  teims  of  the  lihel,  cs  connected  wiih  ex- 
trinsic circumstances,  no  innuendo  ^vill  cidu-r  make  the  pubhcalion 
criminal,  or  subject  the  publisher  to  a  civil  action.  (/). 

Au  indictment,  that  the  defendant  serip.'^it,  fecit,  et  publicavit,  seu 
scribi  fecit,  et  puhlicari  causavit,  has  been  held  to  be  too  uncer- 
tain (/O- 

AVhcn  some  special  intention  is  essential  to  the  *offL>nce,  such  in- 
tention must  be  described  according  to  the  truth  and  the 
nature  of  the  oiTence.     Where  the  libel  has  been  publish-     [  *307  ] 
ed  to  the  prosecu'or  only,  though  its  tendency  be  to  vihfy 
and  degrade  him  in  his  professional   character,  it  should  be  alleged 
to  have  been  pubhshed  with  intent  vo  provoke  a  breach  of  the  peaco 
(/).     So  -fthere   the  indictment  is  founded  on  a  libel  written  to  de- 
grade the  memory  of  one  deceased,  it  should  be  alleged  to  have 
been  published  with  a  design  to  bring  contempt  on  the  family  of  the 
deceased,  and  to  excite  his  relations  to  a  breach  of  the  peace  (m). 
The  most  usual  plea  in  an  indictment  or  information,  is  the  gene- 
ral one  of  not  guilty,  by  which  the  defendant  puts  himself  general- 
ly upon  the  country  for  his  deliverance,  and  is  entitled  to  take  ad- 
vantage of  every  defect  in  the  evidence  for  the  prosecution  ;  or  to 
rebut  that  evidence  by  counter  proof,  tending  to  convince  the  jury, 
either  that  the  act  imputed  was  not  committed ;  or,  admitting  tho 
publication,  to  show  from  the  context  (n),   or  other  circumstances, 
either  that  the  matter  published  was  not  criminal  in  its  nature  ;   or, 
if  criminal,  that  it  was  published  inadvertently  (o) ,   and  without 

action  could  not  have  been  supported,  as  the  alleged  libel  merely  stated  that  a 
bill  had  been  drawn,  but  threw  no   imputation  on  the  drawer. 

(i)  Supra  V.  I.  p.  393.  And  see  R.  v.  Ahlerlon,  Sayer  280.  R.  v.  Burdett,  4 
B.  and  A.  314.  R.  v.  Home,  Cowp.  ()8-2.  Siockley  v.  Clement,  4  Bing.  162 
supra.     Goldstein  v.  Foss,  G  B.  and  C.  152,  supra  305. 

(A)  8  Mod.  328,  and  see  v.  I.  p.  358. 

(/)  R.  I'.  Wegener,  2  Starkie  C.  245. 

(m)  R.  r.  Topham,  4  T.  R   120. 

(n)  R.  V.  Lambert  and  Perry,  2  Carr^p.  C.  398- 

(o)  R.  V.  Lord  Abingdon.  1  Esp.  226. 

Vol.  II.  89 


308  CRIMINAL  DIVISION. 

*any  guilty  knowledge  (^p)  ;  or  that  it  was  publlsherl  un- 
der circumstances  which   the  law  recognizes  as  constitut-     [  *308  ] 
ing  either  an  absolute  justification  or  excuse,  independ- 
ently of  the  question  of  intention,  or  a  qualified  justification  depend- 
ent on  the  actual  intention  and  motive  of  the  defendant  Qq). 

(p)  In  the  case  of  the  King  v.  Holt,  5  T.  R.  444,  Lord  Kenyon,  C.  J.  ob- 
served, if  the  defendant  could  have  shown  that  he  had  published  the  paper  in 
question  without  knowing  its  contents,  as  that  he  could  not  read,  and  was  not 
informed  of  its  tendency  till  afterwards,  that  argument  might  have  been  pressed 
upon  the  jury, 

(?)  Supia  210. 


CHAPTER   XV. 


Evidence. 

•With  respect  to  the  nature  of  the  evidence  to  be     [  *Z0^  ] 
adduced  in  support  of  a  criminal  charge,  little  need  be 
added  to  the  analogous  proofs  already  mentioned  as  applicable  to 
civil  proceedings  :  the  materials  of  evidence,  and  the  rules  which 
govern  their  application  are  for  the  most  part  common  to  both. 

Such  evidence  in  the  criminal  proceeding',  relates  to  the  introduc- 
tory averments,  and  the  act  of  publication  by  the  defendant  of  the 
noxious  matter  charged  {a),  in  the  sense  imputed  by  the  averments, 
and  with  the  intention  alleged.  Whether  the  introductory  aver- 
ments be  proved,  is  usually  matter  of  fact  for  the  determination  of 
the  jury,  subject  of  course  to  any  question  of  variance  from  the 
record. 

•A  Gazette  is  evidence  to  prove  an  averment  that  [  'olO  ] 
certain  addresses  have  been  presented  to  the  King  (6). 

So  the  King's  Proclamation  for  the  discovery  of  certain  olfenders, 
reciting  that  outrages  have  been  committed  in  certain  districts,  is 
evidence  to  satisfy  an  introductory  averment  in  an  information  for  a 
libel,  that  such  outrages  had  been  committed  (^i). 

An  allegation  that  the  defendant  was  duly  elected  treasurer  of  a 

(a)  The  court,  under  the  late  statute,  9  G.  IV.  c.  15,  has  a  discretionary 
power  to  amend  variances  between  the  record  and  any  matter  in  wriung  or 
print  produced  in  evidence. 

(b)  R.  V.  Holt,  5  T.  R.  436. 

(i)  R.  v.  Sutton,  4  M.  and  S.  546. 


810  CRIMINAL  DIVISION. 

j-articu'ar  parish,  is  proved  bj  an  entry  in  the  vestrj-book,  stanng, 
that  he  was  elected  to  that  oflfice  at  a  vestrj  held  afternotice  (c). 

In  criminal  as  well  as  civil  proceedings  in  case  of  libel,  it  is  unne- 
cessary to  give  farther  proof  of  facts  which  the  alleged  libel  assumes 
to  be  truth  (t?). 

*Where  the  indictment  alleges  that  ttie  prosecutor,  at  the  time  of 
the  libel,  filled  a  particular  situation,  it  is  sufficient  to 
[  *311  ]  prove  a  previous  appointment,  without  shov\ing  its  con- 
tinuances ;  for  the  commericement  being  shown,  the  con- 
tinuance will  be  presumed  (e).  Bat  in  criminal  as  well  as  civil 
cases,  unless  strict  proof  of  appointment  be  rendered  necessary  by 
the  particular  mode  of  averment,  proof  that  a  party  acts  in  a  pub- 
lic office  is  sufficient  prima  facie  evidence  that  he  really  held  it  (/). 

In  criminal  cases,  it  is  usually  suffioient  to  prove  a  publication  to 
the  party  defamed  (^).  Bat  it  is  necessary  to  prove  a  publication 
in  the  particular  county  where  the  offence  is  charged  to  have  been 
committed,  in  all  cases  where  the  fact  of  publication  is  of  the  essence 
of  the  offence. 

The  principal  decisions  on  this  subject  have  already  been  adverted 

to.     The  question  of  publication  is  ordinarily  one  of  mere  fact,  to 

be  decided  by   ihe  jury  :  but  this,  like    all  other  legal 

[  '312  ]     and  technical  terms  involves  law  as  well  as  *fact  ;  and  it 

is  a  question  for  the  court,  in  doubtful  cases,  whether 

the  facts,  when  proved,  would  constitute  a  publication  in  point  of  law. 

(c)  R.  r.  Mariin,  2  Camp.  100.  Cor.  MacdonaUl,  C.  B. 

(d)  Supra  p  II,  and  see  tlie  fibservations  t>f  JJayley,  J.  in  R.  v.  Sutton,  4  M. 
and  S.  548.  Where  the  plnintifT  aliened  that  he  held  a  certain  office  and  phice 
of  trust  and  confidence,  to  \>.  it,  the  office  of  overseer  of  a  certain  rommcn  field, 
&c.  and  the  terms  of  the  alleged  libel  treated  the  plaintiff  as  holdino  an  office 
of  public  trust,  and  charged  him  with  not  having  given  a  proper  account  of  the 
public  property  ;  it  was  held  to  be  evidence  of  the  averment,  althoujih  the  plain- 
tiff's own  witnesses  showed  that  the  plaintiff's  offii-e  was  not  one  of  trust  and 
confidence,  and  that  be  was  not  trusted  with  the  receipt  of  money.  Kajjnall  v. 
Underwood,  11  Piice  G21,  and  see  Berryman  v.  Wise,  4  T.  R  3(>0,  supra  p.  2. 

(e)  R.  V.  Budd,  5  E-p.  C.  230,  which  was  an  indictment  for  a  libel  on  Lord 
St.  Vincent,  in  his  character  of  first  Lord  of  the  Admiralty.  The  prosecutor 
produced  his  patent.  (f)  Supra. 

(g)  Piouf  of  such  a  publication  is  not  sufficient,  where  the  only  intent  averred 
is  the  intent  to  injure  the  prosecutor  in  his  profession  as  an  attorney.  R.  ». 
Wegener,  1  Starkie's  C.  543  infra. 


EVIDENCE— PUBLICATION.  812 

In  the  case  of  the  Khuj  v.  Sir  F.  Burdett  (h),  the  first  qnestion 
was  whether  there  was  sufficient  presumptive  evidence  to  warrant  a 
jury  in  finding  that  here  ihad  been  an  open  publlcauon  in  the  county 
of  Leicester,  and  of  this  opinion  were  Abbott,  C.  J.  and  Best,  J. 
Secondly,  Avhether  what    was  termed  a  close  publication,  by  the  de- 
livery of  the  sealed  letter  in  the  county  of  Laicester,  to  be  conveyed 
into  a  different  county  by  the  post,  amounted  to  a  publication  in  law 
in  the  county  of  Leicester,  and  of  this  opinion  were  Ilolroyd  and 
Best,  Jud;^es'^.     Thirdly,  whether  proof  of  such  close  dehvery  ond 
subsequen't  publication,  in  such  different  county,  constituted  an  offjnce 
of  which  the  jury  could  inquire  on  an  indictment  in  the  county  of 
Leicester,  and  of  this  opinion  were  Abbott,  C.  J.  and  Holroyd,  J. 
Ilolroyd,  J.   also  expressed   an  opinion,  that   the  composing  and 
^vriting,  with  the  intention  afterwards  to  publish,  amounted  to  a  mis- 
demea'nor,  and  that  the  jury  might  inquire  as  to  the  publishing  m 
another  county,  in  order  to  prove  the   defendant's  intention  in  com- 
posing  and  writing  in  Leicestershire. 

•Where  a  libel  is  found  in  a  man's  own  custody,  but     [   616  J 
exposed  on  a  shelf  in  a  bookseller's  shop,  the  owner  is,  it 
is  said,  guilty  of  a  pubhcation  (0- 

Proof  that  the  defendant  procured  a  number  of  placards  to  be 
printed,  from  a  manuscript,  part  of  which,  when  printed,  he  took 
away,  is  sufficient  to  warrant  the  reading  in  evidence  one  of  those 
copies  left  with  the  printer  (A;). 

Where  the  defendant  had  acknowledged  himself  to  be  the  author 
of  the  libel  produced  in  evidence,  errors  of  the  press,  and  some 
small  variations  excepted,  his  counsel  objected  that  the  confe.s:oa 
wa.not  abs, lute,  and  that,  therefore,  tho  liSel  could  not  b.  re.d ' 
but  Pratt,  C.  J.  allowed  it  to  be  read,  saying,  that  he  would  put  it 
on  the  defendant  to  prove  material  variances  (/). 

The  provisions  of  the  st.  38  G.  HI.  which  tacihta^e  the  proof  of 
publication  in  proceedings  against  the  editors  of  newspapers,  have 
already  been  adverted  to  (/)/). 

{h)  4  B.  and  A.  95. 

(i)  12  Vin.  Ab.  2-29.     4  Read.  St.  Law.  455. 

(,,  R..Wa.son,2S.arkie'sC.l29.  (^)Supra43. 

(Z)  R.  V.  Hall,  bir.  416.  ' 


314  CRIMINAL  DIVISION. 

[  "314  ]         By  the  st.  60  G.  III.  and  1  G.  IV.  c.  9,  similar  •pro- 
visions are  made  in  respect  of  certain  pamphlets  contain- 
ing public  news  [1]. 
[  *320  ]         *Where  the  publication  of  the  libel  has  been  proved, 
either  the  prosecutor  or  the  defendant  (o)  is  entitled  to 
have  extracts  read  from  different  parts  of  the  same  paper  or  book 
relating  to  the  same    subject. 

The  sale  of  every  distinct  copy  of  a  libel  is  a  separate  offence  (/))  ; 
and,  therefore,  a  conviction  or  acquittal  on  an  indictment  for  pub- 
lishing one  copy  would  be  no  bar  to  an  indictment  for  publishing  an- 
other copy. 

It  is  almost  superfluous  to  observe,  in  this  stage  of  the  present 
work,  that,  in  criminal  as  well  as  civil  proceedings,  it  is  for  the  jury, 
in  all  cases  of  doubtful  application,  to  judge  of  the  defendant's  in- 
tention to  apply  the  words  or  libel  to  the  particular  subject  matter, 
according  to  the  averments  in  the  indictment  (5).  Thus 
[  *821  ]  where  the  'intention  to  apply  defamatory  remarks  to  the 
prosecutor,  is  rendered  doubtful  and  ambiguous,  by  the 
defendant  having  left  blanks  for  names,  or  from  his  having  given 
merely  the  initials,  or  introduced  fictitious  names,  it  is  always  a 
question  for  the  opinion  and  judgment  of  the  jury,  whether  the  pro- 
secutor was  the  party  really  aimed  at(r).     For  this  purpose  the 

(0)  R.  V.  Lambert,  2  Camp.  398.  {p)  R.  v.  Carlisle,  1  Chitty  451. 

(q)  Supra,  vol.  I. — .  In  the  case  of  Yrissari  v.  Clement,  3  Bini^.  432,  the 
alleged  libel  contained  (inter  alia)  the  following  passage  : — "  He  lost  no  time 
in  transferring  himself  with  £200,000  of  John  Bull's  money  to  Paris,  where 
he  now  out-tops  princes  in  his  style  of  living,  (meaning  and  intending  thereby, 
that  the  said  plaintiff  had  fraudulently  obtained  jC200,000  sterling  of  the  mo- 
ney of  the  English  subjects  of  our  sovereign  lord  the  King,  and  had  fled  from 
the  country  with  the  same.)  It  appeared,  from  the  context,  that  the  intention 
of  the  writer  was  rather  to  charge  the  plaintiff  with  fraud  on  the  people  of 
Chili  than  on  the  people  of  England  ;  and  on  this  ground,  after  a  verdict  for 
the  plaintiff,  with  JG400  damages,  the  court  granted  a  new  trial. 

(r)  See  the  observations  and  opinions  of  the  judges,  supra  vol.  I,  p.  54,  et 
sequent. 

[1]  In  the  London  edition  are  set  forth  verbatim  twelve  out  of  nineteen  sec- 
tions of  the  act ;  but  as  it  can  be  of  no  possible  use  here  to  reprint  them,  they 
are  omitted  These  sections  occupy  nearly  six  full  pages  of  the  London  edi- 
tion, viz  :  pages  314,  315,  316,  317,  318,  319. 


EVIDENCE— INTENTION.  S21 

judgment  and  opinions  of  witnesses,  who,  from  their  knowledge  of  the 
parties  and  the  circumstances,  are  liable  to  form  a  conclusion  as  to 
the  clofcndu-ii's  intention  and  application  of  the  libel,  is  evidence  for 
the  Information  of  the  jury  (s). 

*Anv  further  observations  on  the  subject  of  *evidence     [  *322  ] 
to  prove  general  malice  seem  to  be  unnecessary.     The 
rule   of  law  on  this  subject  in  criminal,  is  analagous  to  that  in  civil 
proceedings.     If  the  publication,  considered  either  abstractedly  or 
in  connection  with   the  extrinsic  facts  alleged,  be  calumnious,  inju- 
rious and  criminal,  either  because  it  conveys  some  offensive  and 
noxious  imputation,  or  exposes  an  individual  to  the  hatred  and  con- 
temnt,  or  even  to  the  ridicule  of  others,  and  no  circumstances  ap- 
pear which,  in  legal  consideration,  supply  either  an  absolute  or  even 
qualified  defence,  mahce,  if  material,  is  yet  but  a  mere  inference 
of  law,  which  the  jury  are  bound  to  find,  according  to 
the  direction  of  the  court  (0-     *If,  on  the  other  hand,     [  *323  ] 
there  be  circumstances  which  supply  a  justification  or 

(s)  Supra  52.  Loid  Ellenborough  held,  that  the  declarations  of  spectators, 
while  they  looked  at  a  libellous  picture,  publicly  exhibited  in  an  exhibition 
room,  was  evidence  to  show  that  the  figures  portrayed  were  meant  to  repre- 
sent the  parties  alleged  to  have  been  libelled.     Du  Bost  v.  Beresford,  2  Camp. 

G.  512.  ^  ,     .      -,.,        . 

(0  Supra  240,  and  see  vol.  I.  p.  209.  292.     In  the  case  of  Levi  v.  Milne,  4 
Binah   195,  the  defendant  published  some  doggerel  verses  on  the   plaintiff,  (a 
bailiff  )  describing  an  inefficacious  attempt  on  his  part  to  arrest  a  party  of  whom 
he  was  in  search.     The  publication  was  headed  by  a  wood-cut,  styling  the 
plaintiff  Levy  the  bum.     The  jury  inquired,  whether  one  shilling  would  carry 
costs,  and  being  answered  in  the  affirmitive,  found  a  verdict  for  the  defendant. 
The  court,  und.r  the  circumstances,  granted  a  new  trial,  on  the  ground  that  the 
iary  had  taken  upon  themselves  to  judge  of  the  law  of  the  case  ;  and  Best,  U 
J  said,  it  has   been  urged  that,  in  cases  of  libel,  the  juries  are  judges  of  the 
law  as  well  as  of  fact ;  but  I  beg  to  say  that  juries  are  not  judges  of  the  law, 
or  at  any  rate,  not  in  civil  actions.     The  authority  on  which  that  position  is 
grounded,  is  the  32  G.  III.  c.  60,  which  was  the  famous  bill  brought  in  by  Mr. 
Fox,  or,  more  properly,  by  Lord  Erskine  ;  but  whoever  reads  that  act,  w^l  see 
that  it  does  not  apply  to  civil  actions  ;  it  applies  only  to  criminal  cases      Ihere 
is  nothing  in  it  that  in  any  way  touches  civil  actions,  and  ihe  jury,  with  rc.pect 
to  them,  stand  in  the  same  situation  as  they  have  ever  done.     I  mean,  however, 
to  protest  against  juries,  even  in  criminal  cases,  becoming  judges  of  the  'aw  ; 

the  act  only  says,  that  they  may  give  a  general  verdict."     And  see  4  B.  and 


323  CRIMINAL  DIVISION. 

excuse,  provi'kd  the  defendant  acted  honestly,  with  a  view  to  the 
occa.-iori,  nnd  was  not  actuated  by  express  coll  I'cral  malice,  tlicn  it 
lies  on  ihe  jrosecntor  to  prove  such  express  malice,  or  malice  in  fact. 
Where  a  publication,  with  a  specific  intention  is  alleged,  such 
intcnMon  must  be  proved  accordingly. 

*Where  a  letter  is  alleged  to  have  been  written  and  sent  with  in- 
tent to  provoke  the  party  to  whom  it  has  been  sent  to 
[  *32J:  ]  commit  a  breach  of  the  peace,  such  intent  must  be  proved 
as  laid.  So  where  the  publication  is  averred  to  have 
been  made  wi  h  inlcnt  to  defame  particular  magistrates,  or  to  bring 
the  administration  of  justice  into  contempt.  But  allegations  of  in- 
tent are  usually  divisible,  and  where  two  distinct  intents  are  charged, 
either  of  which  would  have  supported  the  indictment,  it  is  sufficient 
to  prove  either  of  them  (u). 

Where  the  indictment  alleged  a  publication  of  a  libel  with  intent  to 
dit=parage  and  injure  the  prosecutor  in  his  profession  of  an  attorney, 
it  was  held,  that  the  mere  proof  of  a  publication  to  the  prosecutor 
only  did  not  support  the  indictment,  and  that  the  publication  ought 
to  liave  been  averred  to  have  been  made  with  intent  to  provoke  and 
excite  the  prosecutor'^to  a  breach  of  the  peace  (a:). 

Where  the  name  of  the  party  calumniated  is  left  in  blank,  general 
evidence  bj  those  who  know  him  is  sufficient  for  the  purpose  of  prov- 
ing that  he  was  the  person  meant ;  but  such  evidence  *i3 
[  *325  ]     insufficient,  if  it  turn  out,  upon   inquiry,  that  the  witness 

A.  131.  In  the  case  of  Blackburn  v.  Blackburn,  4  Bing.  395,  the  learned 
j'ldge  lelt  it  to  the  jury  to  say,  wlielher  supposing  tlie  alleged  libel  was  a  priv- 
ileged communicadon,  they  found  express  malice.  The  jury  negatived  express 
malice,  and  found  a  verdict  for  the  plaintiff,  with  £50  damages.  The  court 
were  df  opinion,  on  a  motion  for  a  new  trial,  that  the  communication  was  not 
a  privileged  one,  and  that  the  plaintiff  was  entitled  lo  retain  his  verdict.  The 
plain'.iff  having  the  defendant's  bond,  advertised  it  for  sale  ;  the  defendant  pub- 
lished a  statement  of  the  circumstances  under  which  the  bond  had  been  given, 
with  this  conclusion  : — "  His  object  either  is  to  extract  money  from  the  pocket 
of  an  unwary  purchaser,  or,  what  is  more  likely,  to  extort  money  from  ine." 
And  it  was  held,  that  the  publication  was  clearly  libellous,  and  that  no  proof  of 
express  malice  was  necessary.     Tioliinson  v-  M'Dougall,  4  Bing.  670. 

(u)  R.  V.  Evans,  supra  vol.  I,  p.  439.     See  also  vol.  1,  p.  408. 

(2)  R.  V.  Wegener,  1  Starkie's  C.  543.    Cor.  Abbott,  C  J. 


EVIDENCE— INTENTION.     "  325 

derives  his  conclusion,  merely  from  the  terms  of  another  libel,  "with 
the  publication  of  which  the  defendant  had  no  concern  (?/). 

In  general,  it  is  competent  to  the  defendant  to  adduce  any  evi- 
dence in  contradiction  of  that  which  has  been  adduced  on  the  part 
of  the  prosecution.     He  may  show  that  his  delivery  of  the  libel  was 
not  a  wilful  or  blamable  one,  and  that  he  acted  under  an  honest 
ignorance  of  the  contents  or  quality  of  the  libel,  without  knowing  or 
having  reason  to  apprehend  that  the  act  was  illegal.     And  though, 
as  has  been  already  seen,  a  strong  presumption  of  criminal  know- 
ledge or  cupable  connivance  is  usually  and  necessarily  entertained 
against  booksellers,  where  libels  are  sold  by  their  agents,  yet,  as  a 
man  cannot  offend  criminally,  unless  some  degree  of  blame  or  negli- 
gence be  imputable  to  him,  it  seems  to  be  clear  that  this  presump- 
tion is  not  conclusive  in  its  nature,  but  may  be  repelled  by  proof  of 
fraud  or  surprise,  or  such  other  circumstances  as  are  calculated  to 
overcome  that  reasonable  degree  of  vigilance  and  supervision  which 
a  cautious  man  ought  to  exercise  in  so  responsible  a  vocation. 

He  may,  also,  under  the  plea  of  not  guilty,  give  in  evidence  any 
collateral  facts  which  raise  *either  an  absolute  justifica- 
tion, independently  of  the  question  of  actual  intention,  [  •326  ] 
or  a  qualified  justification  or  excuse  dependent  on  the 
question  of  good  or  evil  intention  ;  and  also,  in  the  latter  case,  may 
adduce  such  evidence  as  tends  to  show  that  he  acted  bona  fide  for 
a  legal  object,  and  not  for  any  evil  or  vexatious  purpose. 

It  is  not  competent  to  the  defendant  to  show  that  others  have  pub- 
lished similar  papers,  without  having  been  prosecuted  (2),  for  such 
persons  have  no  opportunity  given  to  defend  themselves,  and  one 
defendant  cannot  excuse  himself  by  showing  that  others  have  also 

been  criminal. 

Matters  available  in  mitigation  of  punishment  are  usually  reserved 
till  after  the  trial,  and  are  exhibited  to  the  court  upon  affilavits. 
In  some  instances,  however,  such  evidence  is  received  at  the  trial. 
Thus  evidence  has  been  received  to  show  that  the  defendant, 
when  proceedings  were  instituted,  stopped  the  sale  of  the  obnoxious 
work  (a). 

(y)  Bourke  v.  Warren,  2  C  and  P.  307.  .     ,  t  j   iqq 

(z)  R  V.  Holt,  5  T.  R.  436.  («)  R-  v.  Hone,  Manning  s  Ind.  198. 

Vol.  II.  90 


CHAPTER  XVI. 


Of  the  Trial  and  Verdict. 

[  *327  ]         *The  verdict  in  this,  as  in  other  criminal  proceedings, 
is  either  a  general  verdict  of  condemnation  or  acquittal ; 
or  a  special  verdict,  by  which  the  jury  find  the  facts,  and  refer  the 
questions  of  law  to  the  court. 

The  oflfence  consists  of  the, act  of  publishing  the  matter  set  forth 
on  the  record,  in  the  sense  attributed  by  the  innuendos,  with  the 
intention  alleged,  maliciously  without  any  legal  justification  or  ex- 
cuse. The  fact  of  publishing  the  illegal  matter,  and  of  its  being 
published  in  the  particular  sense  alleged,  are  ordinarily  questions 
of  fact  for  the  jury,  subject,  of  course,  to  the  opinion  and  judgment 
of  the  court,  whether  the  facts  proposed  to  be  proved  would  be, 
when  proved,  sufficient  in  point  of  law,  to  constitute  a  publication 
and  to  support  the  innuendos. 

Whether  the  defendant  published  the  alleged  libel  wilfully  and 
designedly,  and  whether  he  did  so  with  the  particular  in- 
[  *328  ]  tention  specified  in  the  *information  or  indictment,  are 
also  questions  of  fact  for  the  determination  of  the  jury. 
Till  these  facts  are  determined  by  the  jury,  the  court  cannot  other- 
■wise  then  hypothetically  form  any  judgment  on  the  question  of  guilt 
or  innocence.  On  the  other  hand,  the  quality  of  the  alleged  libel, 
as  it  stands  on  the  record,  either  simply  or  as  explained  by  aver- 
ments and  innuendos,  is  purely  a  question  of  law  for  the  considera- 
tion of  the  court. 

This  position  requires  little  support  from  observation  or  comment ; 
it  rests  not  only  on  precedent,  but  legal  analogies,  and  no  obvious 


TRIAL  AND  VERDICT.  828 

grounds  of  reason  and  convenience.  Upon  a  demurrer,  motion  in 
arrest  of  judgment,  or  writ  of  error,  this  question  is  necessarily  one 
of  mere  law,  and  the  court  is-  called  on  to  pronounce,  whether,  as- 
suming the  alleged  libel  to  have  been  published  in  the  sense  pointed 
out  by  the  averments,  and  with  the  intention  averred,  it  amounts, 
in  point  of  law,  to  a  libel.  The  court,  in  such  cases,  must  neces- 
sarily decide  the  question  of  libel,  or  no  libel,  as  a  question  of  law; 
it  cannot,  therefore,  be  a  question  of  fact ;  it  is  obvious  that  the 
opinion  and  judgment  of  the  jury  on  the  subject  must  be  immaterial, 
when  it  is  considered  that  the  defendant  may  wholly  withdraw  the 
question  from  their  consideration  by  a  demurrer,  or  that, 
even  after  their  decision,  the  question  is  still  open  *on  the  [  "329  ] 
record,  and  must  be  decided  by  the  court,  independently 
of  the  opinion  of  the  jury,  before  they  can  pronounce  any  penal 
sentence. 

The  question  remains,  whether  the  publication  of  the  libel  alleged 
was  a  malicious  or  wrongful  publication ;  for,  though  the  fact  of 
publishing,  and  the  illegal  and  noxious  quality  of  the  thing  publish- 
ed be  beyond  dispute,  yet  the  act  of  publication  may  be  perfectly 
innocent ;  so  far  from  being  illegal,  it  may  have  been  an  act  meri- 
toriously done,  for  the  very  purposes  of  justice.  And,  therefore,  as 
not  merely  a  publication,  but  a  malicious  or  wrongful  publication 
must  be  averred,  so  must  such  a  malicious  and  wrongful  publication 
be  found  by  the  jury,  either  by  means  of  a  general  verdict  of  guilty, 
which  comprehends  the  whole  of  the  charge,  or  by  a  special  finding 
of  a  malicious  and  wrongful  publication,  or,  at  least,  by  negativing 
the  existence  of  any  legal  justification  or  excuse. 

Where  the  circumstances  and  occasion  of  publishing  are  such  as 
amount  to  a  legal  justification  or  excuse,  independently  of  the 
question  of  intention,  the  existence  of  those  facts  is,  of  course,  for 
the  consideration  and  decision  of  the  jury  ;  but  whether,  when  as- 
certained, they  amount  to  a  legal  justification  or  excuse,  is  obviously 
a  mere  question  of  law  for  the  opinion  and  judgment  of 
the  court.  It  is,  for  instance,  a  question  of  mere  *fact,  [  *330  ] 
whether  the  alleged  libel  was  published  by  way  of  peti- 
tion to  parliament,  and  whether  it  was  made  according  to  the  course 


330  CRIMINAL  DIVISION. 

and  order  of  such  like  proceedings  in  parliament,  but  -whether  the 
occasion  justifies  a  publication  so  made,  is  a  question  of  law. 

So,  again,  it  is  a  question  of  law,  whether  the  occasion  and  cir- 
cumstances of  the  publication  furnish  a  qualified  justification  or  ex- 
cuse dependent  on  the  actual  intention  of  the  defendant  ;  but  when 
that  is  the  case,  and  the  guilt  or  innocence  of  the  defendant  turns 
upon  the  question,  whether  he  acted  with  an  evil  and  mischievous 
intention,  or  bona  fide,  and  with  a  view  to  some  legal  object,  the 
question  of  malicious  intention  is  a  conclusion  of  fact  to  be  drawn 
by  a  jury,  on  a  consideration  of  the  terms  of  the  alleged  libel,  and 
all  the  circumstances  of  the  case.  If  the  matter  charged  to  be  li- 
bellous were  contained  in  a  letter,  sent  by  the  defendant  to  the 
prosecutor,  and  the  defence  were,  that  the  charges  it  contained  were 
not  with  the  intent  to  provoke  or  exasperate,  but  were  written  for 
the  purpose  of  honest  remonstrance  and  admonition,  it  would  be  for 
the  jury  to  decide,  under  all  the  circumstances,  considering  the 
situation  of  the  parties,  the  conduct  of  the  defendant,  and  the 
language  used,  whether  the  act  in  reality  originated  in  a  sincere  and 
honest  intention,  or  in  an  evil  and  sinister  motive  which  warranted 

a  conviction. 
[  *831  ]         *Again,  where  there  is  no  evidence  of  such  facts  and 

circumstances  as  would,  if  found  by  the  jury,  raise  either 
an  absolute  justification,  independently  of  the  question  of  intention, 
or  a  qualified  justification  or  excuse,  dependent  on  actual  intention, 
then  if  the  question  of  malice  is  to  be  regarded  as  a  question  of  fact 
for  the  jury,  it  is  undoubtedly  one  which  they  ought,  in  that  predic- 
ament, to  draw  from  the  commission  of  a  noxious  ect.  It  is  a  plain 
and  obvious  principle,  in  morals  as  well  as  law,  that  every  one  must 
be  taken  to  contemplate  and  intend  the  natural  and  immediate  con- 
sequences of  the  act  which  he  does,  and  the  means  which  he  uses. 
The  question  of  malice  may,  it  seems,  in  every  such  case,  be  more 
properly  regarded  as  a  mere  legal  inference,  arising  from  the  doing 
of  an  unlawful  act,  without  legal  excuse,  than  as  a  question  of  fact ; 
malice,  in  such  case,  meaning  nothing  more  than  the  entire  absence 
of  legal  excuse.  Bo  this  as  it  may,  in  this  case,  as  well  as  others, 
it  is  clear,  for  the  reasons  already  adverted  to,  that  in  order  to  war- 
rant a  legal  judgment  of  condemnation,  the  jury  must,  by  their  ver- 


INCIDENTS  TO  THE  TRIAL.  331 

diet,  find  that  the  act  was  done  maliciously  or  wrongfully,  or  in  such 
other  manner  as  is  sufficient  to  negative  the  question  of  any  legal  jus- 
tification or  excuse  ;  till  then,  the  presumption  of  innocence  is  not 
excluded,  still  less  is  the  criminality  of  the  act  established. 

*The  common  law  doctrine,  as  to  trials  for  libel,  on 
these  points  seems  to  remain  still  the  same  notwitlistand-  [  *So2  1 
ing  the  statute  32  G.  III.  c.  60,  by  which  such  trials 
on  informations  and  indictments  are  regulated  ;  the  effect  of  this 
statute  seems  to  be  simply  to  remove  some  doubts  which  had  exist- 
ed, and  some  peculiarities  which  had  prevailed  in  practice  with  re- 
spect to  trials  for  libel,  and  restore  the  ordinary  course  and  order 
of  the  common  law. 

The  practice  which,  after  much  legal  discussion,  at  last  occasioned 
the  passing  of  the  Libel  Bill,  was  this, — the  court,  on  criminal 
trials  for  libel,  and  where  there  were  no  facts  or  circumstances  which 
raised  any  justification  or  excuse  in  point  of  law,  directed  the  jury 
to  find  the  defendant  guilty,  if  they  were  satisfied  as  to  the  fact  of 
publication  and  the  truth  of  the  innuendos.  To  this  it  was  object- 
ed, that  in  the  case  of  libel,  as  well  as  in  all  others,  it  was  for  the 
court  to  pronounce  an  opinion  on  the  legal  quality  of  the  act,  for  the 
guidance  of  the  jury,  and  that  the  fact  of  criminal  irdention  was  pe- 
culiarly for  the  jury,  who  were  to  give  their  verdict  on  the  whole  of 
the  case.  A  minute  attention  to  the  history  of  this  question,  would 
probably  show  that,  if  the  jury  in  such  cases  did  not  violate  their 
duty,  in  taking  on  themselves  to  decide  matters  of  law,  this  appar- 
ent deviation  from  the  ordinary  practice  was  wholly  im- 
material, *as  to  the  final  result ;  that,  on  the  one  hand,  [  *333  ] 
the  course  adopted  by  the  courts  was  occasioned  by  their 
anxiety  to  prevent  juries  from  exceeding  their  authority,  in  cases 
where  strong  prejudices  were  likely  to  operate  ;  and  that,  on  the 
other  hand  defendants  probably  expected  to  derive  benefit  from  the 
operation  of  such  causes,  where  it  was  possible  that  juries  might  be 
willing  to  warp  the  law  according  to  their  feelings  and  prejudices, 
and  shelter  themselves  under  a  general  verdict.  In  ordinary  prac- 
tice, it  is,  no  doubt,  for  the  court  to  direct  the  jury,  as  to  the  crim- 
inal quahty'of  the  acts  which  the  evidence  tends  to  prove.  Upon  a 
charge  of  forgery,  where  evidence  is  given  that  the  prisoner  altered 


833  CRIMINAL  DIVISION. 

a  genuine  instrument,  the  court  informs  the  jury  whether  that  altera- 
tion amounts,  under  the  circumstances,  if  the  facts  be  proved,  to  the 
offence  of  forgery  :  in  larceny,  ^yhether  the  particular  act  of  which 
evidence  is  given,  amounts  to  an  asportation  sufficient  to  Avarrant  a 
charge  of  felony ;  and  this  is  obviously  necessary  in  all  cases  where 
the  charge  is  stated,  by  the  aid  of  any  general  terms,  on  the  face  of 
the  record,  and  the  question  arises,  whether  the  particular  facts 
proved  are  sufficient,  in  point  of  law,  to  support  that  charge ;  in  all 
Buch  cases,  the  jury  would  not  be  warranted  in  pronouncing  a  gene- 
ral verdict  of  guilty,  except  upon  information,  in  point  of 
[  *334  ]  law,  that  the  facts  were  sufficient  in  point  *cf  law,  to  sat- 
isfy the  allegation  on  the  record  ;  and  it  is  no  doubt  the 
duty  of  the  court  to  supply  this  information.  The  case  of  libel  is 
peculiar,  for  there  the  libel  i'self  is  set  out  on  the  record,  and  though 
the  court,  at  the  trial,  should  not  give  an  opinion  on  the  criminal 
quality  of  libel,  yet  if  the  matter  published  were  not  in  law  a  libel, 
no  penal  judgment  could  afterwards  be  pronounced.  Assuming, 
therefore,  that  the  allegd  libel  was,  in  point  of  law,  no  libel,  the  only 
difference  would  be,  that,  according  to  the  ordinary  practice,  the  de- 
fendant would  be  entitled  to  his  acquittal  upon  the  trial  by  the  jury, 
■whilst  according  to  the  former  practice,  in  case  of  libel,  the  defend- 
ant might  be  convicted  at  the  trial,  but  would  be  entitled  to  arrest  of 
judgment,  by  reason  of  the  defect  on  the  record. 

With  respect  to  the  latter  objection,  viz :  that  the  question  of  in- 
tention ought  to  be  left  to  the  jury,  as  a  question  of  fact,  it  is  to  be 
observed,  that  the  practice  of  advising  the  jury  to  find  the  defendant 
guilty,  on  proof  of  the  fact  of  publication  and  of  the  proof  of  the 
innuendos,  was  confined  to  those  cases  where  no  legal  justification 
or  excuse,  either  of  an  absolute  or  qualified  nature  as  dependent  on 
actual  malice,  arose  out  of  the  circumstances ;  and,  consequently, 
where  the  only  question  was,  whether  malice  was  not  a  mere  legal 
inference  from  the  very  act  of  publishing  illegal  matter ;  in  such 
cases,  therefore,  that  *is,  where  the  matter  published  was 
[  *335  ]  libellous,  and  there  was  a  total  absence  of  any  legal  jus- 
tification or  excuse,  there  was  no  real  question  of  inten- 
tion to  be  left  to  the  jury. 

Having  made  these  remarks,  for  the  purpose  of  showing  to  what 


INCIDENTS  TO  THE  TRIAL.  335 

extent  the  practice  -which  occasioned  the  Libel  Bill  differed  from  the 
ordinary  course,  and  that  the  deviation,  though  anomalous  and  un- 
necessary, and  to  that  extent  at  least  objectionable,  was  more  ap- 
parent than  real,  it  will  be  proper  to  advert  to  the  different  cases 
which  have  occurred  in  relation  to  this  question. 

After  the  abolition  of  the  Star  Chamber,  which  in  cases  of  libel 
exercised  an  unbounded  control  over  both  law  and  fact,  the  cojiniz- 
ance  of  such  offences  reverted  to  the  court  of  King's  Bench,  to  be 
exercised  in  the  constitutional  mode  by  the  intervention  of  a  jury ; 
and  till  some  time  after  this  period,  no  doubt  seems  to  have  been 
entertained  of  the  right  of  a  jury  to  give  a  general  verdict  in  the 
case  of  libel,  as  well  as  in  any  other  criminal  proceeding. 

In  the  year  1670  (a),  two  Quakers,  Penn  and  Mead,  indicted  for 
seditiously  preaching  to  a  multitude  tumultuously  assembled  in 
Gracechurch  Street,  were  tried  before  the  Recorder  of  London, 
who  told  the  jury,  that  they  had  nothing  to  do  but  to  find  whether 
the  defendants  had  preached  *or  not ;  for  that,  whether 
the  matter  or  intention  of  their  preaching  was  seditious,  [  *336  ] 
were  questions  of  law  but  not  of  fact,  which  they  were 
to  keep  to  at  their  peril.  The  jury  first  found  Penn  guilty  of  speak- 
ing to  the  people  in  Gracechurch  Street.  This  verdict  having  been 
refused  by  the  Recorder,  the  jury  again  retired,  and  afterwards 
brought  in  a  general  verdict  of  acquittal;  this  the  court  considered 
as  a  contempt,  and  set  a  fine  of  forty  marks  on  each  of  them,  and 
directed  them  to  be  confined  till  the  fine  should  be  paid.  Edward 
Bushel,  one  of  the  jurors,  refused  to  pay  the  fine,  and  being  impri- 
soned in  consequence  of  his  refusal,  sued  out  his  writ  of  habeas  cor- 
pus, which  was  returned,  together  with  the  cause  of  his  commit- 
ment, "  his  acquittal  of  Penn  and  Mead  against  the  law  of  England, 
against  the  evidence,  and  against  the  direction  of  the  court  on  mat- 
ter of  law." 

Lord  Chief  Justice  Vaughan,  on  the  latter  part  of  the  return, 
observed,  "  The  words  that  the  jury  did  acquit,  against  the  direction 
of  the  court  in  matter  of  law,  literally  taken  and  de  piano,  are  in- 
significant and  unintelhgible ;  for  no  issue  can  be  joined  of  matter  in 

(a)  Bushel's  case,  Vaughan  Rep.  135, 


336  CRIMINAL  DIVISION. 

law ;  no  jury  can  be  charged  with  matter  in  law  barely ;  no  evidence 
ever  was  or  can  be  ^iven  to  a  jury  of  what  is  law  or  not ;  nor  no  such 
oath  can  be  given  to  or  taken  by  a  jury  to  try  matter  iu  law ;  nor  no 
attaint  can  lie  for  such  a  false  oath. 

•"  Therefore  we  must  take  off  this  veil  and  colour  of  words,  which 

make  a  show  of  being  something,  and  in  truth  are  no- 
[  •337  ]     thing. 

"  If  the  meaning  of  these  words,  finding  against  the  di- 
rection of  the  court  in  matter  of  law,  be,  that  the  judge  having 
heard  the  evidence  given  in  court,  for  he  knows  no  other,  shall  tell 
the  jury  upon  this  evidence,  the  law  is  for  the  plaintiff  or  for  the 
defendant,  and  you  are  under  the  pain  of  fine  and  imprisonment  to 
find  the  contrary,  then  the  jury  ought  of  duty  so  to  do ;  every  man 
sees  that  the  jury  is  but  a  troublesome  delay,  great  charge,  and  of 
no  use  in  determining  right  and  wrong ;  and,  therefore,  the  trials  by 
them  may  better  be  abolished  than  continued,  which  were  a  strange 
new  found  conclusion,  after  a  trial  so  celebrated  for  many  hundreds 
of  years. 

"  For  if  the  judge,  from  the  evidence,  shall  by  his  own  judgment 
first  resolve  upon  any  trial  what  the  fact  is,  so  knowing  the  fact  shall 
then  resolve  what  the  law  is,  and  order  the  jury  severally  to  find  ac- 
cordingly, what  either  necessary  or  convenient  use  can  be  fancied 

of  juries,  or  to  continue  trials  by  them  at  all  (J)." 
[  *338  ]         Upon  the  trial  of  Nathaniel  Thomson  (c)  and  'others 

for  composing  and  publishing  libellous  remarks  upon  the 
administration  of  justice,  the  chief  justice  (cZ)  concluded  his  obser- 
vations to  the  jury,  by  saving — "  Gentlemen,  I  do  leave  it  to  you, 
whether  upon  this  evidence  you  do  not  believe  them  all  to  be  guilty 
of  this  design  of  traducing  the  justice  of  the  nation." 

In  the  case  of  the  Seven  (g)  Bishops,  who  were  indicted  for 
having  offered  a  petition  to  the  King,  which  was  alleged  to  be  a  libel, 
the  judges,  who  seemed  no  ways  inclined  to  favour  the  defendants, 

{b)  Bushell's  case,  Yaughan  Rep   135. 

(c)  3  St.  Tr.  37.  The  object  of  the  publication  was  to  prove  that  Green, 
Berry,  and  Hill,  had  been  improperly  convicted  of  ihe  murder  of  Sir  Edmund 
Godfrey. 

(d)  Sir  Francis  Pemberton.  (e)  St.  Tr.  4  J.  2. 


INCIDENTS  TO  THE  TRIAL.  338 

would  not  accede  to  the  doctrine  of  the  counsel  for  the  cro^vn,  who 
contended  that  the  malice  and  sedition,  wherewith  the  prelates  were 
charged,  arose  by  construction  of  law  out  of  the  fact,  and  that  the 
jury  had  nothing  to  concern  themselves  \Nith  but  the  fact  of  the 
publication  in  IMIddlesex. 

The  defendants  had  given  in  evidence  several  parliamentary  doc- 
uments, to  prove  that  the  dispensing  power  claimed  by  the  king,  and 
against  the  exercise  of  which  the  petition  of  the  Bishops  was  direct- 
ed, w^as  illegal.  The  then  Attorney-General,  after  some  slight  remarks 
upon  this  evidence,  was  about  to  conclude  with  a  some- 
what flippant  expression  of  regret,  that  the  *defendants'  [  *339  ] 
counsel  had  spent  thtir  time  to  so  little  purpose,  when 
the  chief  justice  observed,  "  Yes,  Mr  Attorney,  I'll  tell  you  what 
they  offer,  which  it  will  lie  on  you  to  give  an  answer  to, — they 
would  have  you  show  how  this  has  disturbed  the  government  or  di- 
minished the  King's  authoritj'."  The  Attorney  General  then  con- 
tended, that  malice  or  sedition  arises  by  construction  of  law  out  of 
the  fact ;  and  that  if  the  thing  be  illegal,  the  law  says  it  is  seditious, 
and  a  man  shall  not  corae  and  say  he  meant  no  harm  by  it. 

And  afterwards,  whilst  the  Solicitor  General  was  speaking,  the 
chief  justice  interrupted  him  by  requesting  him  to  come  to  the 
business  before  them,  and  to  show  that  the  alleged  libel  was  in  di- 
minution of  the  King's  prerogative,  or  that  he  ever  had  such  a 
prerogative. 

Upon  summing  up  to  the  jury,  the  chief  justice,  after  addressing 
the  jury  upon  the  point  of  publication,  proceeded,  "  If  you  believe 
this  was  the  petition  they  presented  to  the  King,  then  we  must 
inquire  whether  this  be  a  libel."  The  chief  justice  then  proceeded 
to  intimate  his  opinion,  that  the  publication  in  question  was  a  libel, 
but  as  it  was  a  point  of  law^  invited  his  breihren  to  give  their 
opinions. 

This  the  other  judges  proceeded  to  do. 

Justice  Ilulloway  concluded  by  saying,  "  I  *cannot     [  *340  ] 
think  it  is  a  libel  ;  it  is  left  to  you,  gentlemen,  but  that 
is  my  opinion." 

Powell,  J.  also  delivered  his  opinion  to  the  same  effect,  leaving 
the  issue  to  the  conscience  of  the  jury. 

Vol.  II.  91 


340  CRIMINAL  DIVISION. 

And  afterwards,  when  the  jury  retired  to  determine  upon  their 
verdict,  they  were  permitted  to  take  with  them  the  alleged  libel. 

Upon  the  trial  of  John  Tutchin  (/),  upon  an  information  for 
publishing  a  libel  entitled  the  Observator,  Lord  Ilult,  C.  J.  after 
reading  the  piinted  papers  alleged  to  be  libels,  told  the  jury,  "  Now 
you  are  to  consider,  whether  these  words  I  have  read  to  you  do  not 
tend  to  beget  an  ill  opinion  of  the  administration  of  the  govern- 
ment." The  learned  judge,  it  is  true,  concluded  bis  address  as  was 
afterwards  observed  by  Lord  Mansfield,  C.  J.,  by  saying, ''  If  you 
are  satisfied  that  he  is  guilty  of  composing  and  publishing  these  pa- 
pers in  London,  you  are  to  find  him  guilty."  But  these  words  have 
immediate  reference  to  the  ground  of  defence  upon  which  Mr.  Tut- 
chiu's  counsel  meant  to  reply  :  namely,  that  the  offence  had  not  been 
proved  to  have  been  committed  in  London,  and  cannot 
[  *341  ]  be  considered  as  used  for  the  purpose  of  'withdrawing 
the  attention  of  the  jury  from  the  quality  of  the  publica- 
tion, upon  which  they  had  just  before  received  instructions  ;  and  in- 
deed to  suppose  it  had  so  meant  would  prove  too  much,  since  if  so, 
the  jury  were  directed  not  to  find  the  truth  of  the  innuendos. 

The  first  instance  that  appears  where  the  court  directed  the  jury 
to  find  the  defendant  guilty,  if  they  were  satisfied  with  the  evidence 
of  publication,  appears  to  be  that  of  the  King  v.  Clerk  (g},  ior 
pubhshing  Mist's  Weekly  Journal.  It  appeared,  upon  evidence, 
that  the  defendant  acted  merely  as  servant  to  a  printer  ;  that  his 
business  was  to  clap  down  the  press,  and  there  was  little  or  no  proof 
of  a  guilty  knowledge  of  the  contents  of  the  paper,  or  of  his  being 
concerned  in  a  criminal  act.  It  was  objected  by  Serjeant  Hawkins, 
that  the  course  of  a  malicious  and  traitorous  design  was  not  sup- 
ported  by  the  evidence  from  which  it  appeared  that  the  defendant 
acted  ignorantly  and  in  obedience  to  his  master's  directions.  But 
it  was  answered,  that  since  the  defendant  was  merely  charged  with 
the  publishing  a  seditious  libel,  the  malice  was  immateiial  ;  and 
Lord  Rajmond,  C.  J.   informed  the  jury,  that  the  fact  of  printing 

and  publishing  only  was  in  issue. 
[*342]         And  the  same  learned  judge,  upon  the  trial  of  *an  in- 

(/)  4  St.  Tr.  659. 

ig)  2  G.  II    1729.     Barnard  K.  B.  304. 


INCIDENTS  TO  THE  TRIAL.  342 

formation  (Ji),  directed  the  jury,  "  that  there  were  three  points 
for  consideration  :  the  fact  of  publication,  the  meaning,  (these 
two  for  the  jurj,)  the  question  of  law  or  criminality  for  ihe  court 
upon  ihe  I'eeord.^^ 

L  jrd  Chief  Justice  Lee  gave  the  same  direction  in  the  King  v. 
Owen  {i)  and  Lord  Chief  Justice  Ryder  followed  his  example  in  tho 
case  of  the  King  v.  Nutt  (J€). 

Lord  Mansfield,  soon  after  his  appointment  to  the  high  office  of 
chief  justice,  laid  down  (Z)  the  same  doctrine  in  the  case  of  the 
King  v.  Shebheare  ;  and  though  the  same  learned  judge  repeated 
the  same  directions  in  a  number  of  similar  cases,  all  disquisition  upon 
the  province  of  the  jury  on  these  points  seems  to  have  slept,  till  the 
verdict  given  in  the  case  of  the  King  v.  Wood/all  (m).  That 
was  the  case  of  an  information  filed  by  the  Attorney-General  for 
publishing  a  seditious  libel  signed  Junius  ;  the  jury  found  him  guilty 
of  the  printing  and  publishing  only. 

Upon  motion  to  arrest  the  judgment,  it  was  insisted 
upon  for  the  defendant,  that  a  criminal  *iutention  is  the  [  *343  ] 
essence  of  the  offence  ;  and  that  since  they  had  not 
found  mahce,  it  must  be  taken  not  to  have  existed,  since  a  verdict 
could  not  be  supplied  by  inference ;  but  that  at  all  events,  the  ver- 
dict was  imperfect,  and  that  there  should  be  a  new  trial.  For  the 
crown  it  was  argued,  that  the  law  would  collect  the  intention  from 
the  libel  itself;  that  the  printing  and  publishing  were  all  the  jury 
had  to  inquire  about,  and  that  the  intention  might  be  collected  from 
the  libel  itself. 

Lord  Mansfield,  C.  J.  in  dehvering  the  judgment  of  the  court, 
observed,  '^  there  may  be  cases  where  the  fact  proved  as  a  publica- 
tion may  be  justified,  or  excused  as  lawful  or  innocent ;  for  no  fact 
which  is  not  criminal,  in  case  the  paper  be  a  libel,  can  amount  to 
a  publication,  of  which  the  defendant  ought  to  be  found  guilty. 
But  no  question  of  that  kind  arose  in  this  case,  therefore  I  directed 
the  jury  to  consider  whether  all  the  innuendoes,  and  all  the  applica- 

(A)  9  St.  Tr.  255. 

(i)  10  St.  Tr.  A  pp.  169.    25  G.  II.  K.  B.  MSS.     Dig.  L.  L.  67. 

{k)  Per  Lord  Mansfield,  3  T.  R.  430,  in  the  notes. 

(I)  lb.  ("*)  -''  ^"^"-  ^^^^- 


343  CRIMINAL  DIVISION. 

tions  to  matters  and  persons,  macle  by  the  information,  \yere  in  their 
jadgraents  the  true  meaning  of  the  paper ;  if  ihejr  thought  other- 
Tv'ise,  they  should  acquit  the  defendant,  but  if  they  agreed  wiih  the 
information,  and  believed  the  evidence  as  to  the  publication,  they 
should  find  him  guilty."  The  learned  judge  then  proceeded  to  ob- 
serve, that  if  proof  of  the  express  intent  of  the  defendant  were  re- 
quisite, the  direction  was  wrong ;  but  that,  whether 
[  *344  ]  *the  paper  was  in  law  a  libel,  was  a  question  of  law  upon 
the  face  of  the  record ;  and  that  the  epithets  in  the  io- 
forraation  were  formal  inferences  of  law  from  the  printing  and  pub- 
lishing. That  the  verdict  finds  only  what  the  law  infers  from  the 
fact ;  that  where  an  act,  in  itself  indifferent,  if  done  with  a  partic- 
ular intent,  becomes  criminal,  there  the  intent  must  be  proved  and 
found  ;  but  where  the  act  is  in  itself  unlawful,  the  proof  of  justi- 
fication lies  upon  the  defendant,  and  in  failure  thereof,  the  law 
implies  a  criminal  intent." 

Having  thus  declared  his  opinion  upon  the  subject  of  libel,  in  the 
propriety  of  which  his  brethren  agreed  with  him.  Lord  Mansfield 
then  proceeded  to  deliver  the  sense  of  the  court  upon  the  verdict 
before  them ;  the  substance  of  which  was,  that  as  a  doubt  had  arisen 
from  the  introduction  of  the  ambiguous  and  unusual  word  on^y  into 
the  verdict,  there  should  be  a  venire  de  novo  (n). 

The  legality  of  the  doctrines  laid  down  by  Lord  Mansfield  in 
WoodfaWs  case,  appears  to  have  been  expressly  decided  upon  by 
the  Court  of  King's  Bench,  for  the  first  time,  in  the  case 
[  *345  ]  of  the  King  against  (o)  Wm.  Davies  Shipley,  Dean  *of 
St.  Asaph.  The  defendant  was  tried  before  Mr.  J, 
Buller,  at  Shrewsbury  (p),  upon  an  indictment,  charging  him  with 
Laving  published  a  malicious,  seditious,  and  scandalous  hbel,  entiiled 
"The  Principles  of  Government,  in  a  Dialogue  between  a  Gentle- 
man and  a  farmer,"  with  intent  to  incite  the  King's  subjects  to  at- 
tempt, by  force  and  violence,  to  make  alterations  in  the  government, 
state,  and  constitution  of  the  kingdom.  The  fact  of  publication  was 
clearly  proved ;  and  of  the  truth  of  the  innuendoes  there  was  no 

(n)  Wondfall's  case,  5  Burr.  26G1. 

(o)  3  T.  R.  4'28,  in  the  notes.     See  also  Ridgway's  Speeches   of  the  Hon. 
Thomas  Erskine,  vol.  I.  (p)  Aug.  6ih,  1784. 


INCIDENTS  TO  THE  TRIAL.  345 

doubt,  since  they  merely  averred,  that  by  the  letter  G.,  was  meant 
gentleman;  by  F.,  farmer;  by  the  King,  the  King  of  Great 
Britain.  One  witness  for  the  defendant  stated,  that  upon  his  in- 
forming him,  that  some  gentlemen  were  of  opinion  the  publication 
might  do  harm,  the  defendant  answered,  he  should  be  sorry  to  pub- 
lish any  thing  that  tended  to  sedition  ;  that  some  time  after,  he  said 
upon  reading  it  at  a  pubhc  meeting,  "  I  am  now  called  upon  to  show 
that  it  is  not  seditious,  bu:  I  read  it  with  a  rope  about  my  neck  ;" 
and  that  upon  another  occasion  (g')  when  he  had  read  it,  he  gave 
his  opinion  that  it  was  not  so  bad. 

The  learned-  judge,  on  summing  up  to  the  jury,  *de-  [  *316  ] 
Glared,  that  it  was  not  for  him  to  say  whether  the  pam- 
phlet was  or  was  not  a  libel ;  and  concluded  his  address  to  them  in 
these  words: — "  If  you  are  satisfied  that  the  defendant  did  pubhsh 
this  pamphlet,  and  are  satisfied  as  to  the  truth  of  the  innuendoes, 
in  point  of  law,  you  ought  to  find  him  guilty  ;  if  you  think  they  are 
not  true,  you  will  acquit  him."  The  jury  brought  in  their  verdict 
"  guilty  of  publishing  only."  The  learned  judge  then  informed 
them,  that  by  such  a  verdict  they  Avould  negative  the  meaning  of  the 
innuendoes,  but  that  if  they  left  out  the  word  only,  the  question  of 
law  would  be  open  upon  the  record,  and  that  the  defendant  might 
move  in  arrest  of  judgment.  Upon  this  direction,  Mr.  Erskine  (the 
defend.mt's  counsel)  said,  "  I  beg  to  ask  your  lordship  this 
question,  whether,  if  the  jury  find  him  guilty  of  publishing,  leaving 
out  the  word  onli/,  and  if  the  jadg-iaent  be  not  arrested  by  the  court 
of  Kind's  Bench,  the  sedition  will  not  stand  recorded  ?" 

Mr  J.  BuUer.  "  No,  it  will  not ;  unless  the  pamphlet  be  a  libel 
in  point  of  law."  The  jury  then  returned  their  verdict,  "  Guilty 
of  publishing,  but  whether  a  libel  or  not  we  do  not  find." 

Upon  a  motion  for  a  new  trial,  on  the  ground  of  a  misdirection 
by  Mr.  Justice  BuUer,  the  counsel  for  the  defendant  urged  the  fol- 
lowing points — 

*1.  That  in  every  criminal  case,  upon  a  plea  of  not     [  *0'47  ] 
guilty,  the  jury  are  charged  generally  with  the  defend- 
ant's deliverance  from  that  crime,  and  not  specially  from  any  single 
fact.     Upon  this  topic  it  was  urged,  that  the  rules  of  pleading  in 
(q)  Ridgway's  Speeches  of  the  Hon.  Thomas  Erskine. 


347  CRIMINAL  DIVISION. 

civil  cases  were  framed  for  the  purpose  of  preserving  the  jurisdic- 
tion of  the  court  and  jury  distinct,  by  a  separation  of  the  hwv  from 
the  fact ;  but  that  in  criminal  cases,  no  such  boundary  was  ever  at- 
tempted ; — that,  on  the  contrary,  it  had  been  the  custom,  from  tho 
time  of  the  Norman  conquest,  for  the  defendant  to  throw  himself 
upon  his  country  for  deliverance,  upon  the  general  issue  of  not 
guilty,  and  to  receive  from  the  verdict  of  the  jury  a  complete, 
general  and  conclusive  deliverance. 

In  support  of  this  doctrine,  the  opinions  of  Sir  "Wm.  Elackstone, 
Sir  M.  Hale,  Sir  Mich.  Foster  (r),  and  Lord  Raymond,  were  (s) 
referred  to,  and  thence  assuming  that  the  jury  had  a  right  to  give 
a  general  verdict,  it  was  contended,  that  to  enable  them  to  do  so,  it 
was  the  duty  of  the  judge  to  direct  them  upon  the  law  ;  and  that 
haviniT  omitted  so  to  direct  them,  and  having  informed  the  jury,  that 
neither  the  illegality  of  the  paper,  nor  the  intention  of 
[  *348  ]  the  defendant,  were  within  *their  jurisdiction,  the  defend- 
ant had,  in  fact,  been  found  guilty  without  any  investiga- 
tion of  his  guilt,  and  without  any  power  left  to  the  jury  to  take 
cognizance  of  his  innocence. 

That  2dly.  No  act  is  in  itself  a  crime,  as  abstracted  from  the 
malicious  intention  of  the  actor,  the  establishment  of  the  fact  being 
nothing  more  than  evidence  of  the  crime,  and  not  the  crime  itself, 
unless  the  jury  render  it  so  by  referring  it  voluntarily  to  the  court 
by  special  verdict.  That  in  every  case,  a  general  verdict,  which  is 
as  comprehensive  as  the  issue,  unavoidably  involves  a  question  of 
law  as  well  as  fact,  and  therefore  that  a  judge  who  means  to  direct 
a  jury  to  find  generally  against  a  defendant,  must  leave  to  their 
consideration  every  thing  which  goes  to  the  constitution  of  that 
general  verdict,  and  to  direct  them  how  to  form  that  general  con- 
clusion of  guilty,  which  is  compounded  of  both  law  and  fact. 

That  the  verdict  must  be  taken  to  be  either  general  or  special ; 
if  general,  it  had  been  found  without  a  co-extensive  examination — 
if  special,  the  term  guilty  could  have  no  place  in  it :  that  the  term 
guilty  was  cither  operative  and  essential,  or  a  mere  epithet  of  form  ; 
if  essential,  then  a  conclusion  of   criminal  intention  had   been  ob- 

(r)  Foster  256.  (5)  2  Lord  Ray.  1492. 


INCIDENTS  TO  THE  TRIAL.  849 

tained  from  the  jury  ■wiihoufc  permitting  them  to  exercise 

their  judgment  on  the  defendant's  *evideDCC — if  formal,     [  *349  ] 

no  judgment  could  be  founded  on  it. 

8dlj.  That  the  circumstance  of  the  libel's  appearing  ufon  the 
record   did  not  distinguish  it  from  other  criminal  cases.     For  first, 
the  whole  charge  does  not  always  appear  upon  record  ;  since  a  part 
of  a  publication  may  be   indicted,  and  may,  when  separated  from 
the  context,  bear  a  criminal  construction  ;    and  since  the  court  is 
circumscribed  by  what  appears  upon  the  record,  the  defendant  could 
neither  demur  to  the  indictment  nor  arrest   the  judgment  after  a 
verdict  of  guilty.     That  the  defendant  is  equally  shnt  out  (by  the 
doctrine  insisted  on)   from  deriving  any  aid  from  context,  in  his 
defence  before  a  jury,  for  though  he  should  read    the  explanatory 
context  in  evidence,  he  can  derive  no  advantage  from  reading  it,  if 
the  jury  are  bound  to  find  him  guilty  of  publishing  the  matter  con- 
tained  in  the  indictment,  however  its  innocence  may  be  established 
by  a  view  of  the  whole  work  ;  that  the  only  operation   of  the  con- 
text is  to  show  the  matter  upon  record  not  to  be  libellous,  from  the 
consideration  of  which,  as  being  matter  of  law  for  the  consideration 
of  the  court,  they  are  excluded :  that  to  allow  the  jury  to  go  into 
the  context,  in  order  to  form  a  correct  judgment  of  the  part  indict- 
ed, is  a  palpable  admission  of  their  right  to  judge  the 
merits  of  the  paper  and  the  *intention  of   its  author ;     [  *350  ] 
and  that  it  would  be  preposterous  to  say  that  the  jury 
have  a  right  to  decide  a   paper  criminal  as  far  as  appears  upon  the 
record,  to  be  legal,  when  explained  by  the  whole  work,  of  which  it 
is  a  part ;  but  that  they  have  no  right  to  say,  that  the  whole  work, 
if  it  happen  to  be  set  out  on  the  record,  is  innocent  and  legal. 

That  it  is  equally  absurd  to  contend  that  the  intention  of  the 
publisher  may  be  shown  as  a  fact  by  the  evidence  of  any  extrinsic 
circumstances — such  as  the  context ;  and  in  the  same  breath  to 
say  that  it  is  an  inference  of  law  from  the  act  of  publication  which 
the  jury  cannot  exclude.  That  the  consequences  of  such  a  doc- 
trine would  be  most  dangerous,  since,  if  a  seditious  intention  could 
be  inferred  from  publishing  any  paper,  charged  to  be  a  libel,  a 
treasonable  intention  might  with  equal  reason  be  inferred  from  pub- 
lishing a  paper  charged  to  be  an  overt  act  of  treason. 


850  CRIMINAL  DIVISION. 

4thlj.  That  a  seditious  libel  contains  no  matter  of  law  ;  for  the 
court,  in  considering  the  question  of  a  libel,  as  it  appears  upon  ilie 
record,  are  circumscribed  in  forming  their  judgment,  and  can  de- 
rive no  assistance  from  extrinsic  circumstances  ;  since,  if  they  were 
to  break  through  their  legal  fetters,  their  judgment  would  be  found- 
ed in  facts,  not  in  evidence ;  but  that  such  objec- 
[  *351  ]  tions  'would  vanish  if  the  seditious  tendency  be  consider- 
ed as  a  question  of  fact,  since  the  jury  can  examine,  by 
evidence,  all  those  circumstances,  which  establish  the  seditious  ten- 
dency of  the  paper,  from  which  the  court  are  shut  out. 

Sthly.  That  .in  all  cases  when  the  mischievous  intention,  which  is 
the  essence  of  the  crime,  cannot  be  collected  by  simple  inference 
from  the  fact  charged,  because  the  defendant  goes  into  evidence  to 
rebut  such  inference,  the  intention  becomes  a  pure  unmixed  question 
of  fact  for  the  cousideration  of  the  jury.  That  "  the  publication 
(t)  of  that  which  is  unlawful  is  but  evidence  of  a  criminal  intent ;" 
but  that,  in  the  principal  case,  evidence  had  been  offered  in  favour 
of  the  defendant,  though,  by  the  learned  judge's  directions  to  the 
jury,  the  whole  of  it  had  been  removed  from  their  consideration. 
That  in  Lamb's  (u)  case  it  was  laid  down,  that  every  one  who 
should  be  convicted  of  a  libel  must  be  the  writer,  contriver,  or  ma- 
licious publisher,  knowing  it  to  be  a  libel ;  that  the  knowledge  there 
meant  was  not  a  mere  knowledge  of  the  contents,  for  thac  would 
make  criminality  depend  upon  the  consciousness  of  an 
[  *S52  ]  act,  and  not  on  the  knowledge  'of  its  quality,  which 
would  involve  lunatics  and  children  in  all  the  penalties  of 
criminal  law. 

Lord  Mansfield,  C.  J.  in  delivering  the  judgment  of  the  court, 
observed,  "  Four  objections  have  been  made  ;  the  first  is  peculiar 
to  this  case,  namely,  that  evidence  of  a  lawful  excuse  or  justifica- 
tion was  not  left  to  the  jury  as  a  ground  of  acquittal.  Upon  every 
such  defence,  there  arise  two  questions — the  one  of  law,  the  other 
of  fact.  "Whether  the  fact  alleged  (supposing  it  true)  be  a  lawful 
excuse,  is  a  question  of  law ;  whether  the  allegation  be  true,  is  a 
question  of  fact;  and  according  to  this  distinction,  the  judge  ought 

(t)  Lord  Mansfield's  doctrine  in  the  cases  of  Woodfall  and  Almon,  5  Burr. 
2G61.  268G.  (w)  9  Co.  59. 


INCIDENTS  OF  THE  TRIAL.  352 

to  direct  and  the  jury  ought  to  follow  his  direction ;  though  by 
means  of  a  general  verdict  they  are  entrusted  with  the  power  of 
confounding  the  law  and  fact,  and  of  following  the  prejudices  of  their 
afFc'Ciions  and  passions." 

The  learned  judge  then  proceeded  to  comment  upon  the  evidence 
offered  by  the   defendant,  which   the    court  considered  as  rather  ag- 
gravating his  conduct  than  supplying  a  ground  of  defence  to  be  left 
To  the  jury.     His  lordship  then  observed,  "  The  second  objecion  is, 
that  the  judge  did  not  give  his  own  opinion  wliether  the  writing  was 
a  libel,  or  se°ditious  or  criminal.     The  third,  that  the  judge  told  the 
jury  that  they  ought  to  leave   the  question  upon  the  re- 
cord to  the  court,  if  they  had  no  doubt  of  the  *meaning     [  *o53  ] 
and  publication."     That  the  answer  to  these  objections 
is,  that,  by  the  constitution,  the  jury  ought  not  to  decide  the  qnes- 
tion  of  law,  whether  such  a  writing  of  such  a  meaning,  published 
^N-ithout  a  lawful  excuse,  be  criminal,  and  that  they  cannot  decide  it 
against  the  d.'fendant,  because,  after  a  verdict,  it  remains  open 
upon  the  record.     That  this  is  peculiar  to  the  form  of  a  prosecution 
for  libel,  that  the  question  of  law  remains  open  for  the  court  on  the 
record,  and  that  the  jury  cannot  decide  it  against  the  defendant; 
so  that  a  general  verdict  that  the  defendant  is  guilty  is  equivalent 
to  a  special  verdict  in  other  cases. 

That  no  case  had  been  cited  of  a  special  verdict  in  a  prosecution 
for  libel,  leaving  the  question  of  law  upon  record  to  the  court. 
That  a  criminal  intent,  from  doing  a  thing  in  itself  criminal  without 
a  lawful  excuse,  is  an  inference  of  law.     That  the  practice  objected 
to  had  continued  ever  since  the  revolution  without  opposition,    ihat 
the  fundamental  definition  of  trials  by  jury,  depends  upon  an  uni- 
versal maxim  without  an  exception,  Ad  qumtionem  facti  respondent 
juratores,  ad  qucestlonem  juris  respondent  judices;  that  where  the 
questions  can,  by  the  form  of  pleading  be  separated,  the  distinction 
is  preserved  upon  the   face  of  the  record;  but  that  when  by  the 
form  of  pleading  the  two  questions  are  blended  together, 
and  cannot  be  separated  *upon  the  face  of  the  record,     [   ^^  J 
the  distinction  is  preserved  by  the  honesty  of  the  jury. 

Vol.  IL  92 


854  CRIMINAL  DIVISION. 

His  lordship  concluded  by  giving  the  judgment  of  the  court,  that  the 
rule  for  a  new  trial  should  be  discharged  (a;). 

Lord  Kenyon,  C.  J.  adopted  Lord  Mansfield's  doctrine  in  sum- 
ming up  to  the  jury  in  the  case  of  the  King  v.  Withers  (?/). 

After  this  brief  review  of  the  principal  decisions  upon  this  inter- 
esting topic,  little  remains,  but  to  quote  the  terms  used  by  the  legis- 
lature, when  parliament  deemed  it  proper  to  interfere  and  remove 
all  doubt  from  this  important  subject. 

In  the  statute  32  George  III.  c.  60,  it  is  recited  that  doubts  had 
arisen,  whether  on  the  trial  of  an  indictment  or  information  for  the 
making  or  publishing  any  libel,  when  an  issue  or  issues  are  joined 
between  the  King  and  the  defendant  or  defendants,  on  the  plea  of 
not  guilty  pleaded,  it  be  competent  to  the  jury  impani.elled  to  try 
the  same  to  give  their  verdict  upon  the  whole  matter  in  issue  ;  and 
it  is  then  declared  and  enacted  that  on  every  such  trial 
[  *355  ]  the  jury  *sworn  to  try  the  issue  may  give  a  general  ver- 
dict of  guilty  or  not  guilty  upon  the  whole  matter  put  in 
issue  upon  such  indictment  or  information,  and  shall  not  be  required 
or  directed  by  the  court  or  judge,  before  whom  such  indictment  or 
information  shall  be  tried,  to  find  the  defendants  guilty,  merely  on 
the  proof  of  the  publication  by  such  defendant  or  defendants  of  the 
paper  charged  to  be  a  libel,  and  of  the  sense  ascribed  to  the  same  in 
such  indictment  or  information.  By  the  second  section  it  i^  provided 
"  that  on  every  such  trial  the  court  or  judge,  before  whom  such  in- 
dictment or  information  shall  be  tried,  shall,  according  to  their  or 
his  discretion,  give  their  or  his  opinion  and  direction  to  the  jury  on 
the  matter  in  issue  between  the  King  and  the  defendant  or  defend- 
ants, in  like  manner  as  in  other  criminal  cases."  By  the  third  sec- 
tion it  is  also  provided,  "  that  nothing  herein  contained  sliall  extend, 
or  be  construed  to  extend,  to  prevent  the  jury  from  finding  a  special 
verdict,  in  their  discretion,  as  in  other  criminal  cases."  And  by 
the  fourth  section,  "  in  case  the  jury  shall  find  the  defendant  or  de- 
fendants guilty,  it  shall  and  may  be  lawful  for  the  said  defendant  or 

{x)  Mr.  Erskine  afterwards  moved  in  arrest  of  judgment,  and  judgment  was 
anested,  the  court  considering  the  indictment  to  be  defective, 
(y)  3  T.  R.  428. 


INCIDENTS  OF  THE  TRIAL.  S55 

defendants  to  move  in  arrest  of  judgment,  on  sucli  ground  and  in 
such  manner  as  by  law  he  or  they  might  have  done  be- 
fore  the  passing  of  this  act,  any  ^hing  herein  contamed     [   6bb  J 
to  the  contrary  notwithstanding."  [1] 

It  13  observable,  that  the  first  clause  in  this  statute  is,  so  far  as 
re-ards  the  giving  a  general  verdict,  merely  declaratory,  placmg  in- 
fonnations  and  indictments  for  libels  on  the  same  footing  with  those 
for  any  other  offences.     The  latter  branch  is,  in  its  terms,  purely 
ne<^ative  and  restrictive,  and,  except  that  it  amounts  to  a  legislative 
disapproval  of  the  directions  which  had  been  given  to  juries  in  par- 
ticular  instances,  is  rendered  unimportant  by  the  subsequent  clause 
.hich  directs,  affiro^atively,  what  the  court  or  judge  ./.aZi  do  on  such 
trials      This  (the  second)  section  provides,  th.t  the  court  or  judge 
shall,  according  to  their  or  his  discretion,  give  their  or  his  opimoa 
on  the  matter  in  issue,  in  like  manner  as  in  other  crimmal  case      It 
is  therefore,  observable,  that  the  object  of  the  legis  ature  wa   to  re- 
1  e  all  anomaUes  and  peculiarities  by  which  t^ls  for  ^belswere 
di  tin^uished  from  those  for  any  other  offences.     Now  the  prmc    al 
'eculilrity,  and  that  on  which  the  difference  in  practice  cngmated, 
fastis      hat  in  the  case  of  libel,  the  alleged  libel  was  stated  on 
r  reld,  on  which  account  it  was  unnecessary  to     ecide  at  the 
trial  upon  the  quality   of  the   matter  published.     But 
by   the  express  provision  of  this  clause,  the  jury   are     [   3aT  J 
to  be   directed   as    in  other  criminal    cases;  and  m 

rn  T„  1805  a  s-unilar  act  was  passed  by  ihe  Legislature  of  the  State  of  New- 
L'J  '"  ^  ,r      vvirt  Afh  vol    Webster  <^  Skinner  s  ed.  ch..'d^,p- 

York,  see  Statutes  of  New-York,  ^  ''J_^'\  J  ^^^^  ,hat  of  32  Geo. 
23-2.  The  act  of  1805,  however,  is  broader  ^-J^'^^  kry  to  find  a  general 
III.,  as  U  not  only  Uke  that  act  declares  ^^-"^^^^^f^  Merely  on  th^  proof 
W..  and  forbids  a  direction  to  find  ^^e  cle  e         t    "^^^^^  ^^^  ^J^  ^^_ 

of  the  publication   of  the  matter  charged  to  be  I'beUous,  a 
cnbed  t'o  tt  in  the  indictment,  but  declares  and  ena        ^^^    ^  fj^^^^^^^,  ,,, 
for  a  Ubel,  tkej.ry  W.   skall  trytke  s^me^sk^h^e  an  ^^  .^  ^^^^^ 

law  and  the  fact  under  the   direction  of  the  ^^^^  ''"  ^^^^  i„  ,^,  BiLt  of 

enminal  eases  :  which.  P^i^'P^^^^-^ ^^^  ^    Const.  Art.  7,  ^  9. 

Rights  and  in  the  Amended  Constitution  oi  ^^^  ^^^^^^ 


357  CRIMINAL  DIVISION. 

other  criminal  cases,  the  ordinary  course  is  to  advise  and  di- 
rect the  jury  as  to  the  criminal  quality  of  the  transaction, 
supposing  the  facts  to  be  proved.  It  seems,  therefore,  to  fol- 
low, that  the  court  or  judge  is  bound  to  give  an  opinion  on  the  legal 
quality  of  the  alleged  libel,  as  stated  on  the  record,  and  the  jury 
are  not  to  convict  without  the  previous  sanction  of  the  judge's  opi- 
nion that  the  act  is  criminal,  though,  in  some  instances,  they  had 
been  required  to  convict,  where  they  were  satisfied  as  to  ihe  fact  of 
publication  and  the  truth  of  the  averments.  The  opinion  and  (iirec- 
tion  to  the  jury  is  to  be  given  on  the  matter  in  issue  ;  by  these  terms 
it  is  not,  it  seems,  to  be  understood  that  the  court  or  judge  is  called 
upon  to  give  any  opinion  or  direction  in  the  affirmative  or  negative 
upon  the  whole  of  the  issue,  but  only,  as  in  other  cases,  conditional- 
ly and  hypothetically  upon  the  law,  as  it  arises  on  different  branches 
of  the  evidence.  As,  whether  if  the  facts  be  proved  to  the  satis- 
faction of  the  jury,  which  the  evidence  tends  to  prove,  they  amount 
in  law  to  a  publication;  whether  the  circumstances  proved  raise  an 
absolute  or  quahfied  justification  ;  whether,  under  these  circum- 
stances, proof  of  express  malice  be  essential,  or  in  the  absence  of  any 
evidence  of  facts  which  can  justify  or  excuse,  the  jury  ought  to  infer 
malice  *from  the  very  act  of  publishing  noxious  and  cri- 
[  *358  ]  minal  matter.  The  third  section  seems  to  have  been  in- 
troduced merely  for  the  purpose  of  repellii)g  any  infer- 
ence which  might  otherwise  have  arisen  from  the  terms  of  the  first, 
that  the  jury  were  hound  to  give  a  general  verdict.  The  fourth 
section  seems  to  have  been  suggested  by  some  apprehension,  that, 
without  an  express  clause  to  that  effect,  the  defendant  might  be  con- 
sidered to  be  excluded  from  objecting  that  the  alleged  libel,  as  stat- 
ed on  the  record,  was  not  in  itself  illegal,  and  that  the  publishing  of 
it  was  not  criminal.  As  the  second  section  provides,  in  effect,  that 
the  court  or  judge  shall,  at  the  trial,  direct  the  jury  as  to  the  crimi- 
nal quality  of  the  alleged  libel,  and  the  jury  v. ere  at  their  option  to 
give  a  general  verdict,  it  was  probably  deemed  to  be  expedient  to 
prevent,  by  an  express  enactment,  all  doubt  on  the  question,  whether 
such  opinion  and  verdict  were  to  be  considered  as  final  and  conclu- 
sive. It  seems,  therefore,  that  the  legislature  meant  to  leave  the 
question,  whether  the  matter  published  amounted  to  a  hbel,  as  be- 


INCIDENTS  OF  THE  TRIAL.  358 

fore,  a  question  of  law  [1]  ;  the  fourth  clause  expressly  provides, 
that  the  defendant  may  still  move  in  arrest  of  julgment,  on  such 
trround  as  he  might  have  done  before  ;  and  as,  before  the  statute, 
the  defendant  might  certainly  have  arrested  the  judgment  on  tho 
ground  that  the  matter  published  was  not  libellous,  it  seems  *ihat  no 
alteration  was  intended  to  be  made  in  this  respect,  but 
that  the  objection,  that  the  matter  published  was  innox-  [  *359  ] 
ious,  as  it  stood  on  the  record,  was  still  available.  But, 
■whilst  this  is  the  case,  it  is  obvious  that  the  question  must  remain  a 
question  of  law;  a  general  acquittal  would  be  conclusive,  as  in  all 
other  cases,  but  the  finding  of  the  jury,  as  to  the  mere  criminal 
quality  of  the  alleged  libel,  either  by  a  general  verdict  of  guilty  or 
by  a  special  verdict,  must  be  immaterial,  so  long  as  the  otjection 
may  be  taken  to  the  record  itself,  that  it  charges  no  libel  in  point  of 
law,  notwithstanding  the  finding  of  the  jury  in  fact  (2). 

(z)  See  R.  t).  Holt,  5  T.  R.  436.  In  the  case  of  R.  v.  Burdett,  4  B.  and  A. 
131,  Best,  J.  observes,  '■  It  must  not  be  supposed  ibal  ihe  statute  of  Geor£3:e  the 
Third  mede  the  question  of  libel  a  question  of  fact;  if  it  had,  instead  of  re- 
movinji  an  anomaly,  it  would  have  created  one-  Libel  is  a  question  of  law, 
and  the  judge  is  the  judge  of  the  lavi^  in  libel,  as  in  all  other  cases  ;  the  jury 
having  the  power  of  acting  agreeably  to  his  statement  of  the  law  or  not.  AH 
that  the  statute  does,  is  to  prevent  the  question  fiom  being  left  to  the  jury  in 
the  manner  in  which  it  was  left  before  that  time.  Judges  are,  in  express  terms, 
directed  to  lay  down  the  law  as  in  other  cases.  In  all  cases,  the  jury  maij  find  a 
general  verdict ;  they  do  so  in  cases  of  murder  and  treason,  but  then  the  judge 
tells  tliem  what  is  the  law,  though  they  may  find  against  him,  unless  they  are 
satisfied  with  his  opinion.     And  see  4  Bingh.  l'J5. 

[1]  At  the  time  of  the  publication  of  the  second  English  edition  of  this  treat- 
ise (in  1830),  the  law  on  this  subject  was  no  doubt  held  in  Enjjland  as  slated  in 
the  text,  viz:  that  notwithstanding  the  act  of  32  Geo.  III.  ch.  GO.  tlie  question 
whether  the  matter  published  amounted  to  a  libel  was  a  question  of  law.  The 
views  of  Best,  J.  as  to  the  effect  of  that  act  are  briefly  stated  in  the  note  of  the 
author  on  the  present  page,  (viz :  note  z.  p.  359)  and  will  be  found  more  in  detail 
in  the  report  of  the  case  of  The  Kin^  v.  Burdett,  4  Barn,  and  Aid.  U5,  131,  de- 
cided in  1820.  That  case  was  tried  before  Best,  J.  who  charged  the  jury  that 
they  must  to/c:  the  law  from  him  as  to  whether  the  puh/ication  teas  or  luas  not  a 
libel ,  in  \\\\k\\  direction  he  was  sustained  by  the  whole  court,  who  held  that 
such  was  the  correct  mode  of  leaving  the  question  to  the  jury,  under  the  act  of 
32  Geo.  111.  In  1827,  Best,  then  holding  the  office  of  Chief  Justice  of  the 
King's  Bench,  repeated  in  Levi  v.  Milne,  4  Bingham  195,  the  doctrine  advanced 


859  CRIMINAL  DIVISION. 

by  him  in  The  King  v.  Bnrdett  as  to  the  effect  of  the  act  of  32  Geo.  III.  upon 
the  rights  of  the  jury,  and  insisted  that  the  act  had  no  applicability  to  civil  cases. 
In  1840,  however,  that  act  received  a  construction  in  the  case  of  Baylis  v.  Law- 
rence, 11  Adolph.  and  Ellis  920,  more  in  conformity  with  the  intention  of  the 
law-makers,  according  to  the  history  of  the  act  given  in  the  preceding  part  of 
this  chapter.  Previous  to  that  act,  the  only  questions  submitted  to  the  jury 
were  :  1,  as  to  the  publication  of  the  alleged  libel ;  and  2,  as  to  the  truth  of  the 
innuendoes,  leaving  the  question  of  libel  or  no  libel  to  be  determined  by  the 
covrl;  and  to  remedy  the  mischief  which  had  thus  crept  into  the  admin- 
istration of  the  law,  the  act  was  passed.  B.iylis  v.  Lawrence  was  an 
action  for  libel.  The  presiding  judge  submitted  the  case  to  the  jury  ivilh- 
out  erpnssing  any  opinion  whatever,  whether  the  publication  was  or  was 
not  libellous,  or  even  giving  any  instructions  as  to  what  constituted  a  libel.  Of 
the  course  thus  taken  by  the  judge  complaint  was  made  on  the  part  of  the  plain- 
tiff, against  whom  the  verdict  was  found.  Lord  Denman,  C.  J.  held  that  the 
judge  was  not  bound  to  state  his  opinion  to  the  jury  whether  the  publication  was 
or  was  not  libellous.  The  act  of  32  Geo.  IIL  he  said  was  applicable  only  to 
criminal  cases,  but  it  was  a  declaratory  act,  and  the  importance  of  declaring  the 
law  existed  only  in  the  case  of  rritninal  libels.  The  act,  therefore,  he  said  fur- 
nished clear  evidence,  that  the  judge  is  not  in  civil  rases  bound  to  slate  his  opin- 
ion. He  further  observed  that  he  had  always  followed  the  practice  adopted  in  this 
case  by  the  presiding  jud;ie,  of  leaving  it  to  the  jury  to  say  whether  under  all 
the  circumstances,  the  publication  amounts  to  a  libel.  The  other  judges  acquies- 
ced in  the  doctrine  of  the  Chief  Justice  that  the  law  in  criminal  cases,  as  declar- 
edl  by  the  act  of  32  Geo.  IIL  is  the  lawin  citnl  cases  ;  in  respect  to  which  a  jury 
has  never  been  required  to  find  a  verdict  against  the  defendant  upon  the  mere 
proof  of  publication  and  of  the  truth  of  the  innuendoes,  leaving  the  question  of 
libel  or  no  libel  to  the  determination  of  the  court.  Previous  to  the  decision  of 
Baylis  V.  Lawrence,  Lord  Chief  Justice  Abbott,  in  the  caseof  Fairman  v.  Ives, 
5  Barn,  and  Aid.  642,  submitted  to  the  jury  the  facts  and  circumstances  attending 
a  pul)lication  alleged  to  be  libellous,  and  left  it  to  them  to  declare  whether  it 
was  or  was  not  libellous  ;  and  the  jury  having  found  for  the  defendant,  the  court 
unanimously  refused  to  grant  a  new  trial.  The  same  course  was  puisued  in 
Haire  y. Wilson,  9  Barn,  and  Cres.  472,  decided  1829  ;  and  in  Fisher  v.  Clem- 
ent, 10  Barn,  and  Cres.  472,  decided  in  1830.  See  also  all  the  cases  cited  in 
this  work  in  chapter  XIII.  of  the  1st.  vol.  of  Starkie  on  slander.  Am.  ed. 
1843.  on  the  subject  of  privileged  communications — in  all  of  which  invariably  the 
question  of  whether  the  publication  wasoi  was  not  libellous,  was  submitted  to 
the  jury. 


CHAPTER    XVII. 


Of  the  Proceedings  after  the  Trial. 

*The  court  -will  not,  after  the  defendant's  conviction,  [  '360  ] 
make  an  order  on  the  prosecutor  to  deposit  the  orii^inal 
libel  -with  the  officer  of  the  cciirt  («).  After  the  defendant  haa 
been  found  guilty  on  a  criminal  information,  it  is  a  matter  of  course 
that  he  should  stand  committed,  pending  the  consideration  of  the 
judgment,  unless  the  prosecutor  expressly  consent  to  his  standing 
out  upon  bail  (6). 

The  defendant  cannot  (c)  move  for  a  new  trial  after  the  first 
four  days  of  the  next  term  after  conviction :  but  if  it  appear  to 
the  court  that  injustice  has  been  done  by  the  verdict,  they  -will,  ex 
mto'o  motu,  interfere  afcer  that  period  and  grant  a  new  trial. 

The  vice  of  one  or  more  counts  is  no  ground  for  ar- 
•resting  the  judgment  (c?),  provided  there  be  one  valid  [  'SGI  ] 
count  in  the  information  or  indictment,  though,  as  already 
seen,  it  is  otherwise  in  a  civil  action,  where  general  damages  are 
given,  since  in  the  latter  case  the  court  cannot  apportion  the  dama- 
ges, and  say  how  much  was  intended  to  be  given  in  respect  of  the 
defective  counts. 

When  the  defendant  is  brought  up  for  judgment,  affidavits  aro 
produced  either  by  the  prosecutor  or  the  defendant ;  and  observa- 
tions concerning  them  relate  either  to  their  contents  or  to  the  order 
in  which  they  are  read. 

(a)  2  East.  301.     R.  v.  Cator.  (b)  R.  v.  Wadington,  1  East.  143. 

(c)  5  T.  R.  436.     1  East.  145. 

(d)  R.  V.  Benfield  and  Sanders,  Burt.  980. 


861  CRIMINAL  DIVISION. 

Where  a  defendant  has  heen  convicted,  the  prosecutor  may  read 
affidavits  in  aggravation,  though  made  by  -witnesses  who  were  ex- 
auiined  at  the  trial  ;  in  which  case  the  defendant  will  (/)  be  at  hb- 
erty  to  answer  them. 

And,  where  a  defendant  had  (/)  suffered  judgment  by  default, 
the  prosecutor  was  allowed  to  read  affidavits  in  aggravation,  con- 
taining expressions  made  use  of  by  the  defendant,  confirming  and 
aggravating  his  guilt,  which  had  been  uttered  by  him  in  the  hear- 
ing of  two  persons,  and  by  them  afterwards  related  to  the  persona 
making  the  affidavits,  the  prosecutor  having  first  made 
[  *362  ]  *affidavit  that  an  application  had  been  made  to  both 
those  persons  to  come  forward  with  their  testimony, 
■which  they  had  refused,  and  it  appearing  to  the  court  that  they 
weie  under  control.  But  the  court  allowed  the  defendant  and 
those  persons  time  to  come  forward  and  answer  the  facts.  And 
such  evidence  would  be  inadmissible,  unless  it  appeared  that  the 
person  refusing  to  give  evidence  was  (^)  under  the  control  of  the 
defendant. 

To  show  the  malice  of  the  defendant,  it  is  usual  for  the  prosecu- 
tor to  state  upon  his  affidavit  similar  libels  published  since  the  con- 
viction (7i). 

After  judgment  by  default  in  a  criminal  prosecution,  when  the 
defendant  is  brought  up  for  judgment,  each  party  should  come  pre- 
pared with  affidavits,  stating  his  case  ;  and  if,  in  the  course  of  the 
inquiry,  the  court  wish  to  have  any  point  further  explained,  they 
will  give  the  defendant  an  opportunity  of  answering  it  on  a  future 

day  (0. 
[  *363  ]         *The  defendant  is,  in  general,  at  liberty  to  introduce 

(e)  R.  V.  Sharpness,  1  T.  R.  228. 

(/)  R.  V.  Archer,  2  T.  R.  204. 

{g)  R.  V.  Piiikerton,  2  East  357. 

(/i)  See  R.  V.  Withers,  3  T.  R,  432.  Where  Lord  Kenyon,  Chief  Justice, 
said,  "  It  is  well  settled  that  the  conduct  of  the  defendant,  subsequent  to  his 
conviction,  may  be  taken  into  consideration  eiiher  by  way  of  aggravating  or 
mitigating  the  punishment :  but  the  court  will  take  care  not  to  inflict  a  greater 
punishment  than  the  principal  offence  will  warrant."  The  same  was  ruled  in 
the  case  of  R.  v.  Walter.  (j)  R.  v.  Wilson,  4  T.  R.  487. 


JUDGMENT.  363 

any  affidavit  tending  to  show  that  his  act  did  not  result  from  pure 
malice,  but  proceeded  from  some  moiive  less  reprehensible  ;  how  far 
he  should  proceed  in  his  statement  is,  of  course,  a  matter  of  pru- 
dence and  discretion  to  be  exercised  upon  the  particular  circum- 
stances of  the  case. 

Any  reflections  upon  the  prosecutor  beyond  those  conveyed  by  a 
bare  statement  of  facts,  and  any  attem.pt  to  impugn  the  credit  of  the 
witnesses,  or  the  justice  of  the  conviction,  are  inconsistent  with  the 
situation  of  the  defendant,  who  stands  before  the  court  as  a  suppli- 
cant for  its  indulgence,  and  not  in  the  character  of  an  accuser. 

Il  seems  to  be  settled  that  a  defendant  is  not  at  liberty  to  show,  by 
affidavit,  that  a  libel,  imputing  a  criminal  charge,  was  true,  whether 
the  party  reflected  on  be  or  be  not  the  prosecutor  (j)  [a  a]. 

*In  the  case  of  the  Kmg  v.  Burdttt(Ji)^  where  the  libel 
imported  that  certain  of  the  King's  troops  had  maimed  [  *364  ] 
certain  of  the  King's  subjects,  it  was  held  that  it  was  not 
competent  to  the  defendant  to  use  affidavits,  after  conviction,  in  mit- 
igation of  punishment,  for  the  purpose  of  showing  that  the  facts 
stated  were  true.  But  the  libel  purporting  to  have  been  written  in 
consequence  of  the  defendant's  having  read  statements  to  that  effect 
in  different  newspapers,  an  affidavit  that  he  had  read  those  state- 

ij)  R.  y.  Halpin,  9  B.  and  C.  65.  In  the  case  of  the  King  v.  Roberts,  Mich. 
T.  8  G.  I.  supra  v.  II,  p.  232,  Dig.  L.  L.  16.  Selwyn's  Nisi  Prius  1045,  7ih 
edit.  Holt's  L.  L.  273.  Lord  Hardwicke  is  reported  to  have  intimated,  that 
the  truth  of  a  libel  might  be  shown  in  mit'.gation  of  punishment.  It  is,  how- 
ever, to  he  observed  that,  in  the  same  case,  the  same  learned  judge  is  reported 
to  have  stated,  that  tniih  would  be  no  justificaii(m  in  an  action  for  a  libel. 
The  latter  position  is  certainly  inconect,  according  to  later  authorities,  although 
the  point  was  formerly  doubted.     Supra  v.  I,  p.  232,  3. 

In  the  case  of  the  King  v.  Draper,  (cited  by  Best,  J.  in  the  case  of  the  King 
V.  Burdett,  4  B.  and  A.  321,)  the  court  received  affidavits  of  the  truth  of  the 
charge  ;  but  that  was  done  by  the  consent  of  the  prosecutor.  For  other  ob- 
servaiions  on  this  subject,  see  tiie  Preliminary  Discourse. 

[a  a]  In  the  case  of  The  King  v.  Bradley,  2  M.  &  R.  152,  the  court  of  K. 
B.  IS  stated  to  have  observed,  on  a  defendant  being  brought  up  to  receive  judg- 
ment for  a  libel,  after  conviction  upon  the  trial  of  an  information,  thai  he  could 
not  then  urge  the  truth  of  the  charge  after  having  been  put  to  fair  proof  of  it 
upon  the  trial — quere  ?  {k}  4  B.  and  A.  314. 

Vol.  II.  93 


364  CRIMINAL  DIVISION. 

ments  in  the  newspapers,  and  that  he  had  no  doubt,  in  his  own  mind, 
that  the  statement  was  true,  were  allowed  to  be  read. 

In  the  above  case,  the  parties  to  whom  the  criminal  charge  was 
imputed  by  the  libel,  were  not  the  prosecutors,  and  soma  stress  was 
laid  on  that  circumstance  by  the  court,  in  giving  their  judgment. 
In  the  late  case  of  the  King  v.  Hal  pin  (/),  such  affidavits  were  ex- 
cluded, although  the  party  libelled  was  himself  the  prose- 
[  *365  ]  cutor.  But  *it  was  then  also  held,  that  though  the  de- 
■  fendant  was  not  at  liberty  to  show  by  affidavit  that  the 
charge  was  true,  yet  that  be  might  disclcse  such  circumstances  as 
might  induce  the  court  to  believe  that  he  supposed  it  to  be  true 
when  he  published  the  libel  (w). 

General  evidence  of  good  character,  is  always  proper  to  be  in- 
troduced into  affidavits  in  mitigation. 

It  is  not  usual  to  give  the  defendant  an  opportunity  of  ansvvering 
at  a  future  day  the  affidavits  produced  by  the  prosecutor,  where 
they  do  not  extend  beyond  the  allegations  contained  in 
[  *366  ]  the  *indictment,  though  judgment  should  have  been  suf- 
fered by  default  (w).  But  where  affidavits  are  produced 
to  show  a  continuation  of  the  defendant's  malice,  the  court  has 
thought  it  reasonable  to  allow  the  defendant  an  opportunity  of  an- 
swering them,  since  it  cannot  be  supposed  that  he  comes  prepared 
to  answer  (o)  that  which  is  not  contained  in  ihe  indictment. 

(/)  9  B.  &  C.  G5. 

(m)  But  in  the  case  of  the  King  v.  Baker,  Bull.  N.  P.  9,  which  was  an  in- 
formation against  the  defendant  for  publishing  a  libel  against  Mr.  Svvinton,  of 
Wadham  college,  O.xon,  charging  him  with  criminal  practices,  Lee,  C.  J.  re- 
fused to  let  the  defendant  give  evidence  of  his  reasons  for  doing  it,  viz.  that 
the  supposed  criminal  accomplice  told  him  so  ;  for,  he  said,  the  only  question 
was,  whether  the  defendant  was  guilty  of  printing  or  publishing  the  libtJ,  and 
that,  though  it  were  offered  by  way  of  mitigation  only,  yet,  in  fact,  it  amounts 
to  a  justification  ;  and  it  has  always  been  holden,  that  the  matter  of  a  libel  can- 
not be  given  in  evidence  by  way  of  justification,  because,  if  the  person  charged 
with  any  crime  be  guilty,  he  ought  to  be  proceeded  against  in  a  legal  way,  and 
not  reflected  on  in  this  manner.  And  afterwards,  (Tr.  13  and  M  G.  II.)  the 
Court  of  King's  Bench  would  not  permit  an  affidavit  of  this  matter  to  be  read 
in  mitigation  of  the  fine,  as  they  would  not,  on  the  report,  receive  any  evidence 
of  mailer  which  did  not  appear  at  the  trial. 

(n)  R.  V.  Wilson,  4  T.  R.  487.  (o)  lb.  and  R.  v.  Archer,  2  T.  R.  203. 


JUDGMENT.  366 

"With  respect  to  the  order  observed  in  reading  affidavits : 
When   a  defendant  is  brought  up  to  receive  judgment  after  con- 
viction  for  a  libel,  his  affidavits  (p)   are  first  read,  and  then  the 
prosecutor's  ;  after  which,  the  defendant's  counsel  are  first  heard, 
and  then  the  prosecutor's. 

When  the  defendant  is  brought  up  on  judgment  by  default,  the 
prosecutor's  affidavits  are  first  read,  and  then  the  defendant's  ;  after 
vhlch  the  counsel  for  the  prosecution  are  heard,  and  then  the  coun- 
sel for  (q)  the  defendant. 

Where  there  are  no  affidavits,  the  defendant's  counsel  always  be- 
gin ;  where  judgment  is  by  default,  and  there  are  affida- 
vits for  the  defendant,  *but  none  for  the  prosecution,  the     [  •36T  ] 
defendant's  counsel  begin  (r). 
Of  the  punishment. 

No  offence  seems  to  have  been  visited  with  punishment  so  varied 
in  species  and  degree,  as  that  which  is  the  subject  of  the  foregomg 
trea'i^e  ;  a  striking  proof  how  difficult  it  is  to  estimate  its  evil  con- 
sequences, and  of  the  different  conceptions  which,  in  different  com- 
munities, have  been  entertained  of  their  magnitude. 

The  history  of  foreign  countries  exhibits  the  penalties  for  this 
crime  in  every  gradation,  from  the  infliction  (s)  of  death  to  the 
bleeding  of  the  offending  (t)  organ  ;  even  in  this  it  has  been  pun- 
ished with  very  different  degrees  of  severity,  and  the  history  of  the 
Star  Chamber  records  sentences  upon  libellers  whose  r.gour  can 
scarcely  be  exceeded  :  thus  Wrennum,  for  traducing  and  scandalizing 
the  Lord  Chancellor  Bacon,  in  a  book  dehvered  to  the 
kinc^,  was  sentenced  by  that  *court  to  be  perpetually  im-  [  dbS  J 
pri3°oned,  to  pay  a  fine   of  £1000,  to  be  twice  pilloried, 

(p)  R.  Mich.  29  G.  m.  Tidd's  Pr.  454,  4lh  edit,  and  R.  v.  Bunts,  2  T.  R. 

(9)  R.  Mich.  29  G.  III.  Tidd's  Pr.  434.    2  T.  R.  G83. 

(r)  R.  '-"•  Finneily,  Hil.  T.  1811.  „o„;tnlW 

?)  AUl,ou.Utl,eau,hor  of  the  Libellus  Famosus  was  pumshabl      =p.^  7. 
,„!  !l.e,her  L  oflence  »as  generally  so  pumahable  by  the  law  of  the  T«el,e 

^*  Ace!:L':t  S- -E.  coke,  .he  Lyaian.  bled  the  sWe.eH„  the  .»,«e 
and  .be  lislener  in  the  ear,  1-2  R.  35.    By  .be  laws  of  Alfred,  .be     l-oblicnm 
;e„daeiL"wa,t„bepnn,sbed  by  .he  cut.ing  out  of.be  tongue,  subject . 
redemption,  jam  capitis  seslimationem.    Wilk.  Leg.  Ad.  !=a%.  41. 


868  CRIMINAL  DIVISION. 

and  to  lose  both  his  ears.  Leigh  ton,  for  hi3  publication,  intituled 
"An  appeal  to  Parliament,  or  Sion's  Plea  against  Prelacy,"  was 
sentenced  to  pay  a  fine  of  .£10,000,  to  be  Avhipt  at  the  pillory 
twice,  to  lose  both  his  ears,  to  have  his  nose  slit  and  face  branded, 
and  to  be  imprisoned  in  the  Fleet  daring  life  (^ii). 

One  of  the  earliest  instances  in  which  a  libeller  was  sentenced  to 
the  pillory  at  common  law,  appears  to  have  been  that  of  Hugh 
Baker,  who,  in  the  fourth  year  of  Elizabeth,  was,  for  publishing  a 
libel  upon  some  of  the  inhabitants  of  Chertsey,  sentenced  to  impris- 
onment, pillory,  and  to  find  sscurity  for  his  goad  (x)  behaviour. 
Since  that  period,  this  mode  of  punishment  at  common  law  has  not 
been  unusual,  but  has  seldom  been  inflicted  in  modern  times,  except 
in  cases  marked  by  some  peculiar  atrocity,  and  has  generally  been 
reserved  for  the  more  signal  disgrace  of  those  who  have  been  con- 
victed of  disseminating  profane  or  obscene  libels.  And  now  by  the 
provisions  of  the  late  statute  56  G.  III.  c.  138,  this 
[  *3G9  ]  mode  of  punishment,  in  the  case  of  libel,  is  'wholly  ex- 
cluded. As  a  misdemeanor,  at  common  law,  the  otfence 
is  of  course  puriishable  by  fine  and  imprisonment,  at  ihe  discretion 
of  the  court,  after  a  full  consideration  of  all  the  circumstances,  tend- 
ing either  to  extenuate  or  a;:gravate  the  guilt  of  the  olfender.  In 
addition  to  this,  it  is  frequently  deemed  proper  to  impose  upon  the 
defendant  the  condition  of  finding  security  for  his  good  behaviour, 
for  a  limited  term,  by  which  expedient  the  court  are  enabled  to  ex- 
tend an  humane  indulgence  to  the  offender,  in  respect  of  the  dura- 
tion of  his  imprisonment,  without  compromising  their  first  and  great 
duty  to  the  public,  the  providing  for  its  future  security. 

By  the  St.  60  G.  III.  and  1  G.  IV.  c.  8,  intituled  An  Act  for 
the  more  effectual  prevention  of  Blasphemous  and  Seditious  Libels, 
provision  is  made  for  enabling  the  judge  or  court,  after  ver- 
d  ct  or  judgment  by  default,  to  order  ail  copies  of  such  libel  in 
the  possession  of  the   defendant  to  be  seized  (?/).      By  sec.   2. 

()/)  GC.  1.  1031.     See  also  the  cases  of  Prynne,  Burton,  Bustwick,  &ic. 

{x)  :}  Ins.  £20. 

(y)  "  Whereas  it  is  expedient  lo  make  more  efTectual  provision  fur  the  pun- 
ishment of  blaspliemous  and  seditious  libels,  be  it  enacted  that,  from  and  alter 
the  passing  of  this  act,  in  every  case  in  which  any  verdict  or  judgment  by  de- 


JUDGMENT.  370 

such  (z)  copies  are  *to  be  restored,  in  case  the  judgment  bo  [  *370  ] 
arrested  or  reversed.     The  fourth  section  (a)  subjects  a 
defendant,  in  respect  of  a  second  conviction  to  such  punishment  as 

fault  shall  be  had  against  any  person  for  composing,  printing,  or  publishing  any 
blasphemous  libel,  or  any  seditious  libel  tending  to  bring  into  haired  or  contempt 
the  person  of  his  Majesty,  his  heirs,  or  successors,  or  the  Regent,  or  the  gov- 
ernment and  constitution  of  the  United  Kidgdom  as  by  law  established,  or  either 
House  of  Parliament,  or  to  excite  his  Majesty's  subjects  to  attempt  the  alter- 
ation of  any  matter  in  church  or  state  as  by  law  established,  otherwise  than  by 
lawful  means  ;  it  shall  be  lawful  for  the  judge  or  the  court,  before  whom  or  in 
which  such  verdict  shall  have  been  given,  or  the  court  in  which  such  judgment 
by  default  shall  be  had,  to  make  an  order  for  the  seizure  and  carrying  away, 
and  detaining  in  safe  custody,  in  such  manner  as  shall  be  directed  in  such  order, 
all  copies  of  the  libel  which  shall  be  in  the  possession  of  the  person  against 
whom  such  verdict  or  judgment  shall  have  been  had,  or  in  the  possession  of  any 
other  person  named  in  the  order  for  his  use  ;  evidence  upon  oath  having  beea 
previously  given,  to  the  satisfaction  of  such  court  or  judge,  that  a  copy  or  copies 
of  the  said  libel  is  or  are  in  the  possession  of  such  other  person  for  the  use  of  the 
person  against  whom  such  verdict  or  judgment  shall  have  been  had  as  aforesaid; 
and,  in  every  such  case,  it  shall  be  lawful  for  any  justice  of  the  peace,  or 
for  any  constable  or  other  peace  officer,  acting  under  any  such  order; 
or  fur  any  person  or  persons  acting  with  or  in  aid  of  any  such  justice 
of  the  peace,  constable,  or  other  peace  officer,  to  search  for  any  copies  of 
such  libel  in  any  house,  building,  or  other  p'ace  whatsoever,  belonging  to  the 
person  against  whom  any  such  verdict  or  judgment  shall  have  been  had,  or  of 
any  other  person  so  named,  in  whose  possession  any  copies  of  such  libel,  be- 
longing to  the  person  against  whom  any  such  verdict  or  judgment  shall  have 
been  had,  shall  be,  and  in  case  admission  shall  be  refused  or  not 
obtained,  wiihin  a  reasonable  time  after  it  shall  liave  been  first  de-  [  *371  ] 
manded,  to  enter  by  force,  by  day,  into  any  such  house,  building,  or 
place  whatsoever,  and  to  carry  away  all  copies  of  the  libel  there  found,  and  to 
detain  the  same  in  safe  custody  until  the  same  shall  be  restored  under  the  pro- 
visions of  this  act,  or  disposed  of  according  to  any  further  order  relating  thereto. " 

{z)  Sect.  2.  "  That  if,  in  any  such  case  as  aforesaid,  judgment  shall  be  ar- 
rested, or  if,  after  judgment  shall  have  been  entered,  the  sairie  shall  be  reversed 
upon  any  writ  of  error  ;  all  copies  so  seized  shall  be  forthwith  returned  to  the 
person  or  persons,  from  whom  the  same  shall  have  been  so  taken  as  aforesaid, 
free  from  all  charge  and  expense,  and  without  the  payment  of  any  fees  what- 
ever ;  and  in  every  case  in  which  final  judgment  shall  be  entered  upon  the  ver- 
dict so  found  against  the  person  or  persons  charged  with  having  coniposed, 
printed,  or  published  such  libel  ;  then  all  copies  so  seized  shall  be  disposed  of 
as  the  court  in  which  such  judgment  shall  be  given,  shall  order  and  direct." 

(a)  Sect.  4.  "  And  be  it  farther  enacted,  that  if  any  person  shall,  after  he 


871  CRIMINAL  DIVISION. 

inay  be  inflicted  for  high  misdemeanors,  or  to  banishment  from  the 
Ivirig's  dominions. 

passing  of  this  act,  be  lefrally  convicted  of  having  composed,  printed,  or  pub- 
lished any  bliisphemous  libfl,  ot  any  suoh  sedulous  libel  as  aforesaid,  and  shall 
afier  being  so  convicted  odend  a  second  lime,  and  be  thereof  legally  convicted 
before  any  commissiim  of  Oyer  and  Terminer,  or  goal  delivery,  or  in  hia 
^lajesty's  Court  of  King's  Bench,  such  person  may,  on  snch  second  conviction, 
be  adjudged,  at  the  discretion  of  the  court,  either  to  suffer  such  punishment  as 
may  now  by  law  be  inflicted  in  cases  of  high  misdemeanor,  or  to  be  banished 
from  the  United  Kingdom,  and  all  other  parts  of  his  Majesty's  dominions  for 
such  term  of  years  as  the  court  in  which  such  conviction  shall  take  place  shall 
Older." 

Sect.  5.  "  And  be  it  further  enacted,  that  in  case  any  person  so  sentenced 
and  ordered  to  be  banished  as  aforesaid,  shall  not  depart  from  this  United  King- 
dom within  30  daj's  after  the  pronouncing  of  such  sentence  and 
[  *3T2  ]  order  as  aforesaid,  for  the  *purpose  of  going  into  such  banishment  as 
aforesaid,  it  shall  and  may  be  lawful  to  and  for  his  Majesty  to  convey 
such  person  to  such  parts  out  of  the  dominions  of  his  said  Majesty,  as  his  Ma- 
jesty by  and  with  the  advice  of  his  privy  council  shall  direct." 

Sect.  G.  "  And  be  it  further  enacted,  that  if  any  offender  who  shall  be  so 
ordered  by  any  such  court  as  aforesaid,  to  be  banished  in  the  manner  aforesaid, 
thai!,  after  the  end  of  forty  days  from  the  lime  such  sentence  or  order  hath 
been  pronounced,  be  at  large  within  any  part  of  the  United  Kingdom,  or  any 
other  part  of  his  Majesty's  dominions,  v\iihout  some  lawful  cause,  before  the 
expiration  of  the  term  for  which  such  offender  shall  be  so  oidered  lo  be  banish- 
ed as  aforesaid,  every  such  offender  being  so  at  large  as  aforesaid,  being  there- 
of lawfully  convicted,  shall  be  transported  to  such  place  as  shall  be  appointed 
by  his  Majesty  for  any  term  not  exceeding  fourteen  years;  and  such  offender 
may  be  tried  before  any  Justice  of  Assize,  Oyer  and  Terminer,  Great  Sessions, 
or  Gaol  Delivery,  for  the  county,  city,  liberty,  borough,  or  place,  where  such 
offender  shall  be  apprehended  and  taken,  or  where  he  or  she  was  sentenced  to 
banishment;  and  the  clerk  of  assize,  clerk  of  the  peace,  or  other  clerk  or 
officer  of  the  court,  having  the  custody  of  the  records  where  such  order  of  ban- 
ishment shall  have  been  made,  shall,  when  thereunto  required  on  his  Majesty's 
behalf,  make  out  and  give  a  certificate  in  writing,  signed  by  him,  containing 
the  effect  and  substance,  omitting  the  formal  part  of  every  indictment  and  con- 
viction of  such  offender,  and  of  the  order  for  his  or  her  banishment  to  the 
Justices  of  Assize,  Oyer  and  Terminer,  Great  Sessions,  or  Gaol  Delivery, 
where  such  offender  shall  be  indicted  ;  for  which  certificate  six  shillings  and 
eight  pence  and  no  more  shall  be  paid,  and  which  certificate  shall  be  sufficient 
proof  of  conviction  and  order  for  banishment  of  any  such  offender." 

By  the  7th  section,  the  certificate  of  the  clerk  of  the  peace,  cleik  of  as- 
size, or  other  officer  of  the  court,  having  the  custody  of  the  records,  &c.  shall 
be  sufficient  proof  of  the  conviction  of  such  offender. 


TRECEDE^s^TS. 


1.  Declaration  hy  Bill  in  the  King^s  Bench  for  Words  of  Felony, 

IMiDDLESEX  (a)   TO   WIT.     A.  B.  the  plaintiff  (h^    in   this  suit, 
cotnplain's  of  C.  D.  (c)  the  defendant  in  this  suit,  being 
in  the  custody  of  the  marshal  of  the   Marshalsea  of  our     [  "373  ] 
Lord  the  now  King  before  the  King  himself  of  a  plea  of 
trespfiss  on  the  case,  &c. 

(A)  For  that  whereas  (c?)  the  said  plaintiff  is  a  good,  honest, 
true,  and  faithful  subject  of  the  realm,  and  as  such  hatli  always  be- 
haved and  conducted  himself,  and  until  the  committing  of  the  griev- 
ances hereinafter  mentioned  was  always  reputed  and  esteemed  to  be 
a  person  of  good  name,  fame,  and  credit,  to  wit,  at,  &c.  (B)  And 
Tvhereas  also  the  said  plaintiff  hath  never  been  guilty  i^^)  nor  until 
the  commission  of  the  said  grievances  been  suspected  to  have  been 
guilty  of  the  felomes  {or  misdemeanors  as  the  case  may  be)  and  of- 
knces  hereinafter  mentioned  to  have  been  charged  upon  aud  imput- 
ed to  him,  the  said  plaintiff,  or  any  other  such  crimes  (or 
misdemeanors)  or  offences,  *by  means  whereof  he,  the  [  '374  ] 
said  plaintiff,  before  the  committing  of  the  sud  griev- 
ances, had  deservedly  obtained  the  good  opinion  and  credit  of  all 
the  good  and  worthy  subjects  of  the  realm  to  whom  he  was  known, 
to  wit,  at,  &c.  (C). 

(a)  The  venue  is  transitory.  See  1  T.  R.  571,  G47.  Supta  vol.  I.  342.  See 
aUo  i!)  as  lo  a  change  of  venue. 

(/y)  As  to  ilie  joinder  of  plaintifls,  see  vol.  1.  347. 

(c)  As  lo  llie  joinder  of  defendanis,  see  vul.  I.  354. 

(<J)  This  jTeneral  inducement  of  good  character  uhere  the  slander  involves  an 
imputation  o"n  charactei,  is  usual  but  unnecessary,  f..r  the  law  presumes  aji-;'"** 
misconduct  until  the  contrary  he  duly  proved  ;  and  see  1  Lev.  197.  Siylts  218. 
Suikie  on  Evidence,  lii.  Presumption.  . 

e)  This  exculfiatory  averment  though  usual,  does  not  seem  lo  be  esseniial, 
especially  as  the  charge  is  atierwnrds  alleged  to  have  been  fa/seli/  made  :  if  it 
vere  truly  made  it  lies  on  the  defendant  to  allege  and  prove  the  truth,  bee  '^ 
Wiis.  147,  supra  vol.  ].  434,  435.— Hoolier  v.  Tucker,  Holt's  R.  39.  lien- 
dish  V.  Lindsay,  11  Mod.  194. 


874  APPENDIX. 

Yet  (/)  the  said  defendant  -well  knowino;  the  premises  but  con- 
triving]; and  nialiciously  intending  ( g')  to  injure  the  said  plaintiff  ia 
his  good  name,  fame,  and  credit,  and  to  brin^  him  into  public  scan- 
dal, infamy,  and  disgrace,  and  to  cause  it  to  be  suspected  and  be- 
lieved that  he  was  guilty  of  the  felonies  (or  misdemeanors  as  the 
cane  way  he)  and  offences  licrcinafter  mentioned  to  have  been  im- 
puted to  liim  by  the  said  defendant,  and  to  subject  liim  to  the  pains 
and  penahies  by  law  provided  against  persons  guilty  thereof,  and  to 
vex,  harass,  oppress,  arid  ruin  him,  the  said  plaintiff,  heretofore,  to 
■Nvit,  on,  &c.,  at,  &c.  (/<)  in  a  certain  discourse  which  he  the  said  de- 
fendant, then  and  there  had  in  the  presence  and  hearing  of  divers 
good  and  worthy  subjects  (?')  'of  the  realm,  of  and  concerning  the 

said  plaintiff  (k)  in  the  presence  and  hearing  of  the  said 
[  *375  ]     last-mentioned  subjects  falsely  and  maliciously  spoke  and 

published  (/)  of  and  concerning  the  said  plainiili'  ()«) 
the  several  false,  scandalous,  malicious,  and  defamatory  wor^ls  (/<) 
following,  that  is  to  say.     He  (0}  (meaning  the  said  plainiiif )  is  a 

{f)  Where  extrinsic  averments  are  essential  of  facts  in  relation  to  which  the 
words  or  libel  are  actionable,  they  are  usually  introduced  immediately  before 
tiiis  avermenl.  See  the  next  precedent. — As  to  the  necessity  fur  such  aver- 
ments, see  vol.  I.  p.  3UI. 

As  to  such  averments  great  caution  and  discretion  are  requisite;  to  introduce 
extrinsic  facts  unnecessarily  may  he  prejud.cial  either  in  imposing  the  burthen 
of  unnecessary  proof  on  the  plaiiitifT,  or  in  relieving  the  defendant  from  the  al- 
legation and  pioof  of  that  which  is  essential  to  his  defence.  This  is  not  ull  :  it 
is  ofien  matter  of  policy,  independent  of  the  immediatu  object  of  the  pleader,  to 
set  forih  a  pood  cause  of  action,  to  introduce  allegations  wiih  the  collateral 
view  of  alU)uin2  the  plaintilT  to  go  into  evidence  from  which  he  would  other- 
wise be  excluded.  It  sometimes  happens  that  extrinsic  facts  of  little  importance 
to  the  mere  legal  cause  <if  action  are  of  sreai  importance  with  a  view  to  the  in- 
troduction of  such  evidence  as  is  likely  to  influence  a  jury;  care  should,  how- 
ever, be  taken  to  introduce  other  counts  strictly  confined  to  the  legal  and  techni- 
cal cause  of  action. 

{g)  As  to  the  necessity  for  an  averment  of  malice,  see  vol.  I,  433,  and  the 
authorities  there  cited. 

(A)  The  precise  day  or  place  is  not  material. 

(i)  As  to  these  allegations  see  vol.  J.  p.  360.  It  seems  to  be  sufficient  to 
allege  that  the  words  were  spoken  in  the  presence  of  divers  persons  wiibout 
alleging  that  those  persons  heaid  or  understood  the  words,  for  tliat  will  be  pre- 
sumed till  the  contrary  be  shovvn,  vol.  1.  3(^0.  Secus,  it  seems,  where  the 
Words  were  spoken  in  a  foreign  language,     lb.  361. 

(k)  As  to  the  necessity  for  a  colloquium  and  iis  nffice,  see  vol.  I.  363. 

(/)   As  to  the  necessity  for  this  allegati(m,  see  vol.  1  433,  et.  seq. 

(wt)  As  to  this  allegation,  see  vol.  I.  3"3,  384,  w  here  the  words  were  spoken 
of  a  third  person,  this  allegation  is  said  to  be  necessary  though  acidloquium  be 
laid,  but  where  the  words  were  spoken  to  the  plaintiff  himself,  and  there  is  an 
innuendo  of  the  plaintiff,  the  omission  of  this  allegation  would  nut  be  niaie- 
rial.— Ih. 

(w)  As  to  the  necessity  for  stating  the  words  correctly  and  the  consequences 
of  vaiiance,  see  vol.  I.  369,  et  seq. 

(0)  As  to  the  nature  and  office  of  an  innuendo,  see  vol.  I.  418. 


PRECEDENTS— DECLARATIONS.  876 

ih'ef.     He  (meaninf!;  <hn  said  pla'intiff)  stole  a  horse.     I  can  prove 
him  (meaning  the  sjid  plain  liff)  to  be  a  thief;  he  (meaning  the  said 
plaintirt)  ou)^ht  to  have  been  hanged  miny  years  ago  (p). 
2nd  Count — For  Words  spoken  to  the  Plaintiff. 
And  for   thiit  whereas  also   the  said   defendant  contriving  and 
maliciously  intending  as  aforesaid,  afterwards,  to  wit,  on,   &c.  at, 
&c.  in  a   certain   discourse  which   he  the  said   defendant   then   and 
there   had  with   the  said  plaintiff,  in  the  presence  and  hearing  of 
divers  other  gooil  and  worthy  subjects  of  this  realm, of  and  concern- 
ing the  said   plaintiff,  falsely  and   maliciously  spoke  and   j)ublished 
of  and    concerning  the  said  plaintiff  ((/)  in  the   presence  and  hear- 
ing of  the  said   last-mentioned  subjecs,  the  several   false,  scandal- 
ous, malicious,  and   defamatory  words  following,  that;  is  to  say,  Yo\i 
(meaiiing  the  said  plaintiff)    are  a  thief   (r).      You 
(meaning  the  said  plaintiff)  sto'e  a  horse.     *You  (mean-     [  *376  ] 
ing  the  said  plaintiff)  ought  to  be  hanged.     I  can  prove 
you  (meaning  the  said   plaintiff)  a  thief,  and   it  is  in  ray  power  to 
hang  you  (meaning  the  said   plaintiff).     Whereby  the  said  plaintiff 
hath  been  and  is  greatly  injured   in  his  aforesaid  good  name,  fame, 
and  credit,  and  brought  into  public  scandal,  infamy,  and  disgrace, 
\?iih   and  amongst  all  his  neighbours  and  other  good   and  worthy 
subjects  of  the  realm,  insomuch  that  divers  of  those  neighbours  and 
Bubjecta  have  on  occasion  of  the  committing  of  the  said  grievances 
from   thence  hitherto  suspected  and  believed,  and  stilly  do  suspect 
and  believe  the  said  plaintiff  to  be  guilty  of  the  felonies  (or  mis- 
demeanors as  the  ease  may  he)  and  offences  hereinbefore  mentioned 
to  have  been  imputed  to  the  said  plaintiff,  and  have  from  thence  hith- 
erto by  reason  thereof  wholly  refused  and  still  do  refuse  to  have  any 
dealing  or  communication  with  him  the  said  plaintiff;  and  the  said 
plaintiff  hath  been  and  is,  by  reason  of  the  premises,  greatly  ia- 
jured  and  damnified  (s),  to  wit,  at,  &c. 

(p)  Where  the  words  themselves  manifestly  import  a  charge  of  a  specific 
crime,  il  is  unnecessary  lo  inlroduce  any  innuendo  as  to  their  meaning,  see 
vol.1  4-28,9.  Penke  o.  Oldham,  Cowp. '275.  But  such  an  innuendo  that 
the  defendant  therehy  meant  to  charge  the  specific,  offdnce  of  murder  or  laice- 
ny,  would  not  vitiate  the  declaration  where  such  an  intention  could  be  collected 
from  the  words — lb. 

(y)  Supra  note  (i)  and  vol.  I.  p.  360.  Where  the  words  were  spoken  /o  the 
plainiiff  himself,  a  colloquium  and  innuendo  are  sufficient  wiihout  this  lurther 
averment. 

(r)  As  to  the  actionable  meanin?  of  the  terms,  see  vol.  i.  p   99. 
(s)  Where  the  plaintiff  has  suffered  any  special  damage,  &c.  m  respect  of 
which  he  claims  compensation,  it  ought  to  be  specially  alleged,  see  vol.   1.  489. 

Vol.  II.  94 


S76  APPENDIX. 

2.  Declarntinn  against  C.  D.  for  charging  A.  B.  with  Perjury  in 
giving  Evidence  on  the  Trial  of  a  Cause. 

State  the  general  inducement  of  good  character  as  in  Precedent 
1,  from  (-4)  to  (^0)  and  then  proceed  as  folloics  : 

And  Tyhereas  a  certain  issue  {or  certain  issues  according  to  the 

fact')  joined  between  E.  F.  and  G.  H.  in  a  plea  of in  the  court  of 

our  said  Lord  the  King  before  the  King  himself,  to  wit,  at  West- 
minster, was  (or  were)  duly  tried  at  the  assizes  held  in  and  for 
the  county  of at in  the  said  county  of on,  &.c.  by  a  cer- 
tain jury  of  that  county,  in  that  behalf,  before the  Justices  of 

our  said  Lord  the  King  assigned  to  take  the  a^s'zes  in  the 

[  'STT  ]      said  county  of* (s).     Ani  the  said  A.  B.  at  the 

said  trial  was  then  and  there  duly  sworn  before  the  said 
Justices  at  the  said  assizes,  and  was  then  and  there  examined  and 
gave  his  evidence  as  a  witness  upon  the  said  trial  (f),  yet  the  said 
C.  D.  well  knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  said  A.  B.  in  his  said  ^ood  name,  fame  and 
character,  and  to  bring  him  into  public  scandal,  infamy,  and  disgrace, 
and  to  cause  it  to  be  suspected  and  believed  that  he  was  gui'ty  of 
perjury,  and  to  subject  him  to  the  pains  and  penalties  by  law  provi- 
di'd  against  persons  guilry  thereof,  and  to  vex,  harass,  oppress,  and 
ruin  him  the  said  plaintiff,  heretofore  to  wit,  on,  &c.  at,  &c.  in  a 
certain  discourse  which  he  the  said  defendant  then  and  there  had  in 
the  presence  and  heaving  of  divers  good  and  worthy  subjects  of  the 
realm,  of  and  concerning  the  said  A.  B.,  and  of  and  concerning  (m) 
the  trial  of  the  said  issue  (or  issues),  and  the  said  evidence  so  as 
aforesaid  given  by  the  said  A.  B.  at  and  upon  the  said  trial,  he  the 
said  C.  D.  then  and  there  in  the  presence  and  hearing  of  the  said 
last-mentioned  subjects,  falsely  and  maliciously  spoke  and  published 
of  and  concerning  the  said  A.  B.,  and  the  said  trial,  and  the  said 
evidence  so  given  by  the  said  A.  B.  on  the  said  trial,  the  several 
false,  scandalous,  aalicious,  and  defamatory  words  following,  that  13 
to  say.  He  (meaning  the  said  A.  B.)  forswore  himself  at  the  trial 
of  that  cause  (meaning  the  said  trial  above-mentioned). 

2ncZ  Count. — And  ibr  that  the  said  C.  D.  contriving  and  intend- 
ing as  aforesaid,  afterwards  to  -wit,  on,  &c.  at,  &c.  in  a  certain 
other  discourse  which  he  the  said  C.  D.  then  and  there  had  in  the 

(5)  It  would  be  sufficient  to  aver  more  concisely  ihat  at  the  assizes  held  on, 
&c.  at,  &c.  in  and  for  the  county  of ,  a  certain  cause  came  on  to  be  tried  be- 
fore a  jury  in  that  behalf  duly  taken,  wherein  one  M.  N.  was  the  plaintiff,  and 
one  O.  P.  the  defendant. 

{t)  See  in  general  as  to  the  necessity  for  a  mode  of  alleging  extrinsic  facts, 
▼ol.  I.  p.  391. 

(u)  As  to  the  necessity  for  this  averment,  see  vol.  I.  p.  413, 


PRECEDENTS— DECLARATIONS.      377 

presence  and  hearing  of  divers  other  good  and  worthy  subjects  of 
this  realm,  of  and  concerning  the  said  A.  B.,  and  of 
and  concerning  the  said  trial,  falsely  and  •maliciously  ['378] 
spoke  and  published,  in  the  presence  and  hearing  of  the 
said  last  mentioned  subjects,  the  several  other  false,  scandalous, 
malicious,  and  defamatory  words  following,  of  and  concerning  the 
said  A.  B.,  and  of  and  concerning  the  said  trial,  and  of  and  con- 
cerning the  said  evidence,  so  as  aforesaid,  given  by  the  said  A.  B. 
on  the  said  trial,  that  is  to  say,  He  (meaning  the  said  A.  B.)  for- 
swore himself  at (meaning  at  the  said  trial  of  the  said  issue). 

Conclude  as  in  Precedent  1. 


3.   For  Words  imputing  Bishonesti/  to  a  Tradesman  (x). 

(^General  inducpment  of  good  character  as  in  Precedent  l^from 
(^A)  to  (Z^)  and  then  asfoUoivs  :) 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 
committing  of  the  said  grievances,  and  from  thence  hither;o,  hath 
used  and  exercised  and  still  uses  and  exercises  the  business  of  a 
tailor  (?/),  and  hath  always  conducted  himself  and  still  continues  to 
conduct  himsef  with  honesty  and  integrity  in  his  said  trade  or  busi- 
ness, to  wit,  at,  &c.,  and  halh  never  been  guilty  nor  until  the  com- 
mitting of  the  said  greivances  been  suspected  to  have  been  guilty  of 
any  cheating,  fraud  or  dishonesty  in  his  said  trade  or  business,  or 
otherwise.  By  means  whereof  the  said  plaintiff,  before  the  commit- 
ting of  the  said  grievances,  had  not  only  deservedly  obtained  tho 
good  opinion,  confidence,  and  credit  of  all  his  neighbors,  and  other 
good  and  worthy  subjects  of  the  realm  to  whom  he  was  any  wise 
known,  but  had  acquired  and  was  still  continuing  to  acquire  in  hi3 
said  trade  or  business  divers  great  profits  and  emolumeuts,  for  his 
maintenance  and  support,  to  witi,  at,  &c.  Yet  the  said 
defendant,  well  knowing  the  premises,  but  contriving  *and  [  *379  ] 
wickedly  and  maliciously  intending  to  injure  the  plaintiff 
in  his  said  good  name  fame,  and  credit,  and  in  his  said  trade  or 
business,  and  to  bring  him  into  public  scandal,  infamy,  and  disgrace, 
and  to  cause  it  to  be  suspected  and  believed  that  he  the  said  plain- 
tiff was  guilcy  of  fraud  and  dishonesty,  and  of  cheating  and  impos- 
ing on  his  customers  in  his  said  trade  or  business,  and  to  oppress 
aud  ruin  him  the  said  plaintiff,  heretofore,  to  wit,  on,  &c.  at,  iStc, 

(x)  See  in  general  as  to  words  actionable  in  respect  of  special  character, 
voM.  p.  117  . 

(y)  Supra,  vol.  I.  p.  117;  and  in  general  as  to  the  mode  of  alleging  the 
plaintiff's  special  character,  see  vol.  I.  p.  400. 


879  APPENDIX. 

in  a  certain  discourse  ■^•hich  he  the  said  defendant  then  and  there 
had  of  and  concerning  the  said  trade  or  business  (2),  in  the  presence 
and  hearing  of  divers  good  and  worthy  subjects  of  the  realm,  \ahe- 
]y  and  ntaliciously  spoke  and  published  of  and  concerning  the  said 
jlaintiff,  in  his  said  trade  or  business,  in  the  presence  and  hearing  of 
the  last  mentioned  subjects,  the  several  false,  scandalous,  malicious, 
and  defamatory  words  following,  that  is  to  say.  He  (meaning  the 
said  plaintiff)  {sft  out  the  uords  with  innuendoes  («).)  By  means 
whereof  he  the  said  plaintiff  hath  been  and  is  greatly  injured  in  his 
aforesaid  good  name  and  credit,  and  brou;:ht  into  public  scandal, 
infamy,  and  disgrace,  with  and  amongst  all  his  neighbors  and  other 
good  and  worthy  subjects  of  this  realm,  insomuch  that  divers  of 
those  nei-'hbors  and  subjects  have  by  reason  of  the  committing  of 
the  said  grievances  from  thence  hitherto  susj,.ected  and  believed,  and 
still  do  suspect  and  believe  the  said  plaintiff  to  be  guilty  of  f.aud 
and  dishonesty  in  his  said  trade  or  business,  and  have  by  reason 
thereof  wholly  refused  to  have  any  further  dealings  or  transactions 
with  the  said  plaintiff  in  the  way  of  his  said  trade  or  business  or 
otherwise ;  and  the  said  plaintiff  hath  been  and  is  greatly  injured 
and  damnified  in  his  said  trade  and  business  and  otherwise,  and  in 
particular  by  reason  of  the  premises  A.  B.,  C.  D.,  and  E.  F.,  who 
before  the  committing  of  the  said  grievances  had  been  and  were 
customers  and  employers  of  the  said  plaintiff  in  his  said  trade 
or  business,  not  knowing  the  innocence  of  the  said  plaintiff  in  the 

premises,  have  by  reason  of  the  committing  of  the  said 
[*380]     gtievences    suspected    the  said    plaintiff    "to    have   been 

guilty  of  fraud  and  dishonesty  in  his  said  trade  or  busi- 
ness, and  have  wholly  refused  further  to  retain  or  employ  the  eaid 
plaintiff  or  to  have  any  further  dealing  with  him  in  his  said  trade  or 
business,  as  but  for  the  committing  of  the  said  grievances  they  other- 
wise would  have  done  (a),  to  wit,  at,  &c. 


4.  For  Words  of  Insolvency  spoken  of  a  Tradesman  (5). 

(^State  the  General  inducement  of  good  character  as  in  Prtce- 
d.nt  l^from  {A)  to  (if),  then  proceed: 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 

(s)  As  lo  the  necessity  for  this  averment,  see  vol.  T.  p.  213. 
(«)  S.  e  vol.  I.  p.  418. 

(a)  As  lo  ihe  avenneat  of  damage  and  the  necessity  for  averring  special  dam* 
age,  see  vol.  1.  p.  439. 

(b)  See  in  general  as  to  words  of  insolvency,  vol.  1.  p.  127—8. 


PRECEDENTS— DECLARATIONS.      380 

committing  of  the  said  grievances,  and  from  thence  hitherto  hath 
used  and  exercised,  and  still  uses  and  exercises  the  trade  or  business 
of  a  siloersmith  {according  to  the  ftct)  and  has  always  used  and 
exercised,  and  still  uses  and  exeriises  his  said  trade  or  business  with 
integrity  and   punctuality,  and  hath  always  well  and  tnily  paid  and 
discharged  all  his  just  debts  and  obligations,  and  hath  not  been,  nor 
is,  nor  until   the  committing  of  the  said  grievances  been  suspected 
to  be,  either  unable  or  unwilling  duly  and  faithfully  to  pay  and  ds- 
charge   all  such   debts  and   obligations,  to  wit,  at,  &c.     By  means 
■ft'hereof  the  said   plaintiff,  before   the  coraaiitiing  of  the  said   griev- 
ances, had  not  only  deservedly  obtained  the  good  opinion,  confidence, 
and  credit  of  all  his  neighbours  and  other  good  and  worthy  subjects 
of  the  realm  to  whom  he  was  in  any  wise  known,  but  had  acquired, 
and  was  still    continuing  to    acquire  in   his  said   trade  or   business 
divers   large   profits  and   emoluments,  to  wit,  at,  &c.     Yet  the  said 
defendant  well  knowing  the   premises,  but  contriving  and  wickedly 
and  maliciously  intending  to  injure  the  said  plaintiff  in  his  said  good 
name,  fame,  and  credit,  and  to  bring  him  into  public  scan- 
dal, infamy,  and  disgrace,  and  to  cause  it  to  be  *suspect-     [  •381  J 
ed  and  believed  that  he  the  said  plaintiff  was  in  poor  and  ^ 
indigent  circumstances,  and   incapable   of  paying   and  dischargmg 
his  j'ust  debts  and  obligations,  and  to  oppress  and  ruin  him  the  said 
plaintiff,  heretofore,  to   wit,  on    &c.,  at,  &c.,  in  a  certain  discourse 
which  he  the  said  defendant  then  and  there   ha-l  of  and  concerning 
the  said  plaintiff  in  his  said  trade  or  business,  falsely  and  maliciously 
spoke  and  published  of  and  concerning  the  said  plaintiff  in  his  said 
trade  or  business,  the   several   false,  scandalous,  malicious,  and  de- 
famatory words  following,    that  is   to  say,  He  (meaning   the   said 
plaintiff)  owes  more  money  than  he  is  worth,     lie  (meaning  the 
said  plaintiff)  is  run  away.   He  (meaning  the  said  plaintiff)  is  bioke. 
By  means  whereof  he  the  said  plaintiff  hath  been,  and  is  greatly 
injured  in  his  aforesaid  good  name  and  credit,  and  brought  into 
public   scandal,  infamy,   and   disgrace,  with   and   amongst  all    his 
nei-hbours  and  other  good  and  worthy  subjects  of  the  realm,  inso- 
much  that  diveis  of  those  neighbours  and  subjects  have,  by  reason 
of  the  cumadtting  of  the  said  grievances,  from  thence  hitherto  sus- 
pected and  bidieved,  and  still  do  suspect  and  believe  the  sau   plain- 
tiff to  be  insolvent  and  incapable  of  paying  and  discharging  Ins  just 
debts   and  have    by   reason    thereof  wlioUy    refused    to   have   any 
further  dealings  or  transactions  with  the  said   plaintiff  in  the  way  ot 
his  trade  or  o  herwise  ;  and  the  said  plaintiff  hath  been  and  is  g-cat- 
ly  injured  and  danmified  ia  his  said  trade  and  busmess  and  ocher- 
"wise,  to  wit,  at  &c. 


881  APPENDIX. 


5.  For  a  Libel  against  an  Attorney. 

(General  inducement  of  good  character  as  in  Precedent  l,from 
(A)  to  (B)  and  then  as  follows  :) 

And  for  th.it  whereas  also  the  sai'l  A.  B.  for  a  long  time  before 
the  composing  anrl  publishing  of  the  false,  scandalous,  malicious, 
and  defamatory  libel,  by  the  said  C.  D.  hereinafter  mentioueil,  had 
been,  and  was,  and  s'ill  is  an  attorney  (^)  of  the  court  of 
[  *382  ]  our  said  Lord  the  *King  before  the  King  himself,  and 
also  a  solicitor  of  the  high  court  of  Chancery,  and  had 
used,  exercised,  and  carried  on  the  profession  and  business  of  an 
attorney  and  solicitor,  with  great  credit  and  reputation,  and  had  ac- 
quired and  was  still  continuing  to  acquire  divers  large  gains  and 
profits  in  his  said  profession  and  business,  to  wit,  at  &c.  and  whereas 
also  the  said  A.  B.  and  one  E.  F.  another  of  the  attorneys  of  the 
court  of  our  said  Lord  the  King  before  the  King  himself,  and  also 
a  solicitor  of  the  said  high  court  of  Chancery,  had,  as  such  attor- 
neys and  solicitors,  been  concerned  in  the  prosecution  of  a  certain 
commission  of  bankruptcy  against  the  said  C.  D.,  and  in  divers  pro- 
ceedings and  disputes  concerning  his  es  ate  and  effect?,  and  had 
always  behaved  and  conducted  themselves  therein  with  skill,  care, 
jud;^ment,  and  intcgiity,  to  wit,  at,  &c.  aforesaid.  Yet  the  said  0. 
D.,  well  knowing  the  premises,  but  contriving,  and  falsely  and 
fraudulently  intending,  to  injure  the  said  A.  B.  in  his  credit  and 
reputation  aforesaid,  and  also  in  his  said  profession  and  business  of 
attorney  and  solicitor  as  aforesaid,  and  to  cause  it  to  be  suspected 
and  believed  that  he  the  said  A.  B.  had  conducted  himself  dishonest- 
ly, injudiciously,  and  improperly,  in  relation  to  the  said  commission 
of  bankruptcy  proceedings  and  disputes,  and  to  vex,  harass,  oppress, 
imfoveiish,  and  wholly  rum  him  the  said  A.  B.,  heretofore,  to  wit, 
on,  &c.,  at,  &c.,  wrongfully,  maliciously,  and  injuriously  composed, 
wrote,  and  publisheil,  and  caused  to  be  composed,  written,  and  pub- 
lished (d),  a  certain  false,  scandalous,  milicious,  and  defamatory 
libel,  of  and  concerning  the  said  A.  B.  and  E.  F.,  in  the  way  of, 
and  in  respect  to  their  profession  and  business  of  attorneys  and 
solicitors,  and  of  and  concerning  their  prosecution  of  the  said  com- 
miss'.on  as  such  attorneys  and  solicitors,  an  1  their  conduct  as  such 
attorneys  and  solicitors  in  sach  proceedings  and  disputes  in  which 
they  were  so  concerncil  as  aforesaid,  under  the  said  commission  of 
bankruptcy,  in  the  form  of,  and  as  a  letter  addressed  to,  &c.,  in 

(c)  As  to  the  allegation  of  special  character,  see  vol.  I.  p.  400. 
{d)  As  to  the  averment  of  publication,  vide  supra  vol.  I.  p.  358. 


PRECEDENTS— DECLARATIONS.  S83 

which  eaid  letter  was  and  is  contained,  araong=:t  other 
thin^is,  the  false,  scandalous,  Mefamatory,  and  libellous     [  'SSI  ] 
vords  and  matters  following,  of  and  concerning  the  said 
A.  B.  and  E.  F.  in  the  way  of  and  in  respect  to  their  pn-fession  and 
business  of  attorneys  and'solicitors,   and  of  and   concerning  their 
prosecution  of  the  said  commission  as  such  attorneys  and  sohci'ors, 
and  their  conduct  as  such   attorneys  and  solicitors,  in  such  proceed- 
ings and  disputes  in  which  they  were  so  concerned  as  aforesad,  un- 
de'r  the  said   commission   of  bankruptcy.     {Here  set  out   the  letter 
verbatim,  with  approj^riate  innuendoes).     By  means  of  the  compos- 
in'T,   willing,  and  publishing  of  which  said   lalse,  scandalous,  ma- 
licMous,  and  defamatory  hbel  by  the  said  C.  D.  as  aloresaid,  the  said 
A.  B.  hath  been,  and  is  greatly  prejudiced  in  his  credit  and  reputa- 
tion aforesaid,  and  brought;  into  public  scandal,  infamy,  and  disgrace, 
and  hath  been  and  is  suspected  to  have  acted  dishonestly  and  un- 
skilfully  in  the  way  of  his  said  business  and  profession  of  an  attor- 
ney and  solicitor  and  to  have  conducted  himself  dishonestly,  inj'.rli- 
ciouslv,  and  improperly,  in  relation  to  the  said  commission  of  bank- 
ruptcy,  proceedings  and  disputes,  and  has    been  greatly  vexed, 
har;.ssed,  oppressed,  and  impoverished,  and  has  also  lost  and  l)een 
deprived  of  divers  great  gains   and  profits  wh:ch  would  oiherwise 
have  arisen  and  accrued  to  him  in  his  said  profession  and  business, 
and  hath  been,  and  is  otherwise  much  injured  and  damnified  there- 
in, to  wit,  at,  kc.y  to  the  damage,  &c. 


6.  For  Words  imputing  Ignorance   and  Unskilful  Treatment  of  a 
Fatient  to  an  Apothecary. 

(^General  Inducement   of  good   character  as  in  Frecedentl,  from 

(A)  to  (B)  and  then  as  follows  :) 

And  whereas  the  said  plaintiff  before  and  at  the  timeof  the  com- 
mitting of  the  grievances  hereinafter  mentioned,  practised  and  ex- 
ercised, and  still  continues  to  practice  and  exercise  the  art  or  busi- 
ness  of  an  apothecary  (.),  and  hath  always  conducted 
himself,  and  still  'continues  to  conduct  himself  m  the  [  ^»^  J 
practice   of  his  said   art  or  business    with   great    skill,  _ 

care,  and  humanity,  in  preparing,  administering,  and  applying 
wholesome  and  proper  medicines  for  healing  and  curing  divers  sub- 
iects  of  this  realm  of  many  diseases  and  disorders  under  winch  they 
respectively  laboured,  by  means  whereof  the  said  plaintiff,  betore 
the  committing  of  the  said  grievances,  had  deservedly  obtamed  and 

(e)  See  vol.  I.  p.  400. 


384  APPENDIX. 

arqnired  the  good  ofinion,  esteem,  and  confilence  of  all  his  neigh* 
loins,  atid  o'.hir  jiood  and  worthy  subjects  of  the  realm  to  whom  ho 
wrs  in  any  wi^e  kiiown.  and  had  atquired.  and  was  still  continuing 
to  acquire  divers  great  gains  and  pn^ti's  hy  the  jractice  of  his  said 
art  or  business,  to  wir,  at,  &c.  Aiid  whereas  also  (/)  the  said 
jilaintiif  whilst  he  so  yiracticed  and  exercised  his  said  art  or  husiuess 
and  before  the  committing  of  the  said  grievances,  to  wit,  on,  &e., 
at  &c.,  was  sent  for  as  such  apothecary  to  attend  and  visit  in  tJJO 
way  of  his  said  art  or  business  the  ci;ild  of  one  E.  F.,  wbich  was 
then  sick,  and  which  lelore  the  comniirting  of  the  said  giievances 
died,  and  during  his  atttndance  on  the  said  child,  he  the  said  plain- 
tiff prepared  and  adminissered  to  the  said  child  wholesome  and  pro- 
per medicines,  according  io  the  nature  of  the  disorder  of  the  said 
child,  to  wit,  at,  &c.  Nevertheless  the  said  defendant,  well  know- 
ing the  prt  mises,  but  contriving  and  maliciously  interiding  to  pre- 
judice and  injure  the  said  plaintiff  in  his  good  name,  fame,  credit, 
and  esteem,  in  his  aforesaid  art  or  business,  and  to  cause  the  said 
plaintiif  to  be  brought  into  public  scandal,  infamy,  and  disgrace,  and 
reputed  to  be  a  peison  ignorant  in  his  said  art  or  business,  on,  &c. 
at,  &c.,  ijj  a  certain  di^course  which  the  said  defendant  then  and 
there  had  with  divers  subjects  of  this  realm,  of  and  concerning  the 
said  plaintiff,  in  his  aforesaid  art  or  business,  and  his  attendance  on 
the  said  child,  and  of  and  concerning  the  medicines  and  remedies 
which  the  said  jjlainiiff  had  prepared  for,  and  administered  to  the 
said  child,  the  said  deiendant  falsely  and  maliciously  in 
[  *385  ]  the  presence  and  hearing  of  those  subjects,  'spoke,  pro- 
claimed, and  published,  of  and  concernmg  the  said  plain- 
tiff in  his  said  art  or  business,  and  of  and  concerning  his  said  attend- 
ance on  the  said  child,  the  several  false,  scandalous,  malicious,  and 
defamatory  words  following,  that  is  to  say.  He  (meaning  the  said 
plaintiff)  has  a  great  deal  to  answer  for ;  but  for  his  (meaning  the 
said  plaintiff's)  ignorance,  (meaning  ignorance  in  his  said  art  or 
business)  that  child  (meaning  the  said  cliild  whom  the  said  plaintiff 
as  such  apothecary  had  attended,  and  to  whom  he  had  aiiministered 
as  aforesaid)  would  still  have  been  living.  His  (meaning  the 
said  plaintiff's)  medicines  di<i  the  business. 

27id  Count. — For  the  Words, — the  niedidne  tvhich  he  sent  (raean- 
inw  the  medicine  administered  by  the  said  plaintiff,  as  such  apoth- 
ecary, to  the  said  child  of  the  said  E.  F.)  was  no  better  than  poison. 

Bv  means  whereof  the  said  plaintiff  is  much  prejudiced,  injured, 
and  degraded  in  his  good  name,  fame,  credit,  and  reputation,  aad  is 

(/)  See  in  general  as  to  the  necessity  for  and  mode  of  alleging  extrinsic 
facts,  vol.  I.  p.  391. 


PRECEDENTS— DECLARATIONS.  885 

fallen  into  public  scandal  and  disgrace,  and  reputed  to  be  a  person 
iguorant  in  his  said  art  or  business  of  an  apothecary,  and  divers  of 
his  friends  and  neighbours  and  other  good  and  worthy  subjects  of 
the  realm,  have  by  reason  of  the  committing  of  the  said  grievances, 
refused,  and  scill  do  refuse  to  employ  the  said  plaintiff  in  his  afore- 
said art  or  business  of  an  apothecary  as  before  they  were  used  to 
do,  and  otherwise  would  have  done,  t<»  the  damage,  &c. 


7.  For  Written  Slander  in  (jiving  the  Character  of  a  Servant. 

'(^General   inducement  as  in  Precedent    1, from  (^A)  to  (B)  and 

then  as  folloivs ;) 

And  for  that  whereas  the  said  A.  B.  before  the  committing  of 
the  grievances  hereinafcer  mentioned,  had  been  retained  and  em- 
ployed by  and  in  the  service  of  the  said  CD.  as  his  butler  and  ser- 
vant, and  in  that  capacity  had  behaved  with  due  integrity 
'good  temper,  activity,  and  civility,  and  never  was,  or  un-  [  *386  ] 
til  the  time  of  the  committing  of  such  grievances,  suspected 
to  have  been,  or  to  be  bad  tempered,  lazy,  or  impertinent,  by  means 
of  which  said  several  premises  he  the  said  A.  B.  before  the  com- 
mitting of  the  said  several  grievances  had  not  only  deservedly  ob- 
tained the  good  opinion  of  a'l  his  neighbours,  and  divers  other 
good  and  worthy  subjects  of  this  realm,  but  had  also  supported 
himself,  and  would  thereafter  have  supported  himself  by  his  hon- 
est, faithful,  diligent,  and  attentive  exertions  in  the  service  of  his 
masters  and  employers,  had  not  such  grievances  been  committed 
as  hereinafter  mentioned,  to  wit,  at,  &c.  And  whereas  the  said  A. 
B.  before  and  at  the  time  of  the  committing  of  such  grievances,  had 
quitted  and  left  the  service  of  the  said  C.  D.,  and  had  been  recem- 
mended  to,  and  was  likely  to  be  retained  and  employed  by  and  in 
the  service  of  one  E.  F.,  as  footman,  for  certain  wages  to  be  there- 
fore paid  to  him  the  said  A.  B.,  to  wit,  at,  &c.  Yet  the  said  C. 
D.,  Avell  knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  said  A.  B.  in  his  said  character,  and  to  bring 
him  into  public  scandal,  infamy,  and  disgrace,  with  and  amongst 
all  his  neighbours,  and  other  good  and  worthy  subjects  of  this  realm, 
and  particularly  Avith  the  said  E.  F.,  and  to  cause  it  to  be  suspect- 
ed and  believed  that  the  said  A.  B.  was  not  fit  to  be  employed  a3 
a  servant,  and  that  he  was  bad  tempered,  and  a  lazy  and  imperti- 
nent fellow,  and  thereby  to  prevent  the  said  E.  F.  from  retaining 
and  employing  him  the  said  A.  B.  in  his  service  as  he  otherwise 
might  and  would  have  done,  and  to  vex,  and  harass,  oppress,  im- 
poverish, and  wholly  ruin  him  the  said  A.  B.,  and  to  deprive  him 

Vol.  II.  95 


88G  APPENDIX. 

of  the  means  of  supporting  himself  by  honesty  and  industrious 
means  heretofore,  to  -wit,  on,  &e.,  at,  &c.,  aforesaid,  wrongfully 
and  unjustly  did  compose  and  publish  a  certain  false,  scandalous, 
malicious,  and  defamatory  Ubel,  of  and  concerning  the  said  A.  B. 
as  such  servant,  containing,  amongst  other  things,  the  several  false, 
scandalous,  malicious,  and  defamatory  words  and  matters  following, 
of  and  concerning  the  said  A.  B.,  as  such  servant,  that 
[  *387  ]  is  to  say,  He  (meaning  the  said  *A.  B.)  is  a  bad  tem- 
pered, lazy,  impertinent  fellow,  (thereby  then  and  there 
meaning  that  the  said  A.  B.,  was  not  a  person  fit  to  be  retained 
and  employed  in  the  capacity  of  a  servant). 

2nd  Count. — And  the  said  A.  B.  further  says  that  the  said  C. 
D.  further  contriving  and  intending  to  injure  and  damnify  the  said 
A.  B.  as  aforesaid,  afterwards,  to  wit,  on,  &c.,  at,  &c.  falsely, 
wickedly,  mahciously,  wrongfully,  and  unjustly,  did  publish,  and 
cause  and  procure  to  be  published,  a  certain  other  false,  scandalous, 
mahcious,  and  defamatory  libel,  of  and  concerning  the  said  A.  B. 
as  such  servant  as  aforesaid,  containing  the  several  false,  scan- 
dalous, malicious,  and  defamatory  words  and  matters  following,  of 
and  concerning  the  said  A.  B.,  as  such  servant  as  aforesaid,  that 
is  to  say.  He  (meaning  the  said  A.  B.)  is  a  bad  tempered,  lazy, 
and  impertinent  lellow,  by  means  of  the  committing  of  which  said 
grievances  the  said  A.  B.  hath  been  and  is  greatly  injured  in  his 
said  good  character,  and  brought  into  public  scandal,  infamy,  and 
disgrace,  with  and  amongst  all  his  neighbours  and  other  good  and 
worthy  subjects  of  the  realm  to  whom  he  was  in  any  wise  known, 
insomuch  that  divers  of  those  neighbours  and  subjects,  and  in  par- 
ticular the  said  E.  F.,  to  whom  the  good  temper,  fidelity,  activity, 
and  civility  of  the  said  A.  B.  in  the  capacity  of  a  servant  or  oth- 
erwise were  unknown,  l.ave  on  occasion  of  the  committing  of  the 
said  grievances,  from  thence  hitherto,  suspected  and  believed,  and 
the  said  E.  F.  still  doth  suspect  and  believe  the  said  A.  B.  to  have 
been  and  to  be  a  bad  tempered,  lazy,  and  impertinent  person,  and 
unfit  to  be  retained  or  employed  in  the  capacity  of  a  servant,  and 
also  by  reason  thereof,  the  said  E.  F.  afterwards,  to  wit,  on,  &c.  afore- 
said, at,  &c.  aforesaid,  refused  and  declined  to  retain  and  employ  the 
said  A.  B.  in  his  service  as  a  footman  or  otherwise,  as  he  otherwise 
might  and  would  have  done,  and  by  reason  thereof,  he  the  said  A.  B. 
hath  not  only  lost  and  been  deprived  of  the  support,  sustenance, 
wages,  gains,  and  emolumems  which  might  and  would  otherwise 
have  arisen  and  accrued  to  him  from  and  by  reason  of  his  being 
so  retained  and  employed  as  last  aforesaid,  but  hath 
[  *388  ]  from  *thence' hitherto  remained  and  continued,  and  still 
is  out  of  employ,  deprived  of  the  opportunity  of  support- 
ing himself  by  honest  and  industrious  means,  and  hath  been  and 


PRECEDENTS— DECLARATIONS.  388 

is,  by  means  of  the  said  several  premises,  otherwise  greatly  injured 
and  damnified,  to  wit,  at,  &c.  aforesaid,  to  the  damage,  &c. 


K.  Declaration  for  Words  spoken  of  a  Magistrate  in  his  Office  (s). 

(^General  averment  of  good  character  as  in  Precedent  1,  from 
(JL)  to  (B). 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 
committing  of  the  said  grievances  by  the  said  defendant  was,  and 
from   thence  hitherto  hath  been,  and  still  is  one  of  the  Justices  of 
our  Lord  the  King  assigned  to  keep  the  peace  of  our  said  Lord  the 
King,  in  and  for  the  county  of and  also  to  hear  and  de- 
termine divers  felonies  and  other  misdemeanors  committed  in  the 
said  county,  aml'during  all  that  time  governed  and  conducted  him- 
self in  his  said  office  with  justice,  uprightness,  and  integrity,  to  wit, 
at,  &c.     Yet  the  said  defendant  well  knowing  the  premises,  but  con- 
triving and  wrongfully  and  maliciously  intending  to  injure,  prejudice, 
and  aggrieve  him  the  said  plaintiff,  so  being  such  justice  as  afore- 
said, and  to  cause  it  to  be  suspected  and  believed  that  he,  the  said 
plaintiff,  had  acted  unjustly  and  corruptly  in  his  said  office  of  justice  of 
the  peace,  heretofore,  to  wit,  on,  &c.,  at,  &c.,  in  a  certain  discourse 
which  he  the  said  defendant  then  and  there  had  in  the  presence  and 
hearing  of  divers  good  and  worthy  subjects  of  the  realm,  of  and  con- 
cerning liim  the  said  plaintiff  in  his  said  office  of  justice,  falsely  and 
maliciously  spoke  and  published  of  and  concerning  the  said  plaintiff 
in  his  said  office,  the  several  false,  scandalous,  malicious,  and  de- 
famatory words  following,  that  is  to  say.  He  (^set  out  the  tvords  ivith 
proper  innuendoes.') 

*By  means  whereof  the  said  plaintiff  hath  been  and  is  greatly  in- 
jured, prejudiced,  and  aggrieved  in  his  said  office,  and  in 
his  good  name,  fame,  and  reputation,  and  divers  of  the  [  *389  ] 
good  and  worthy  subjects  of  the  realm  have  suspected 
and  believed,  and  still  do  suspect  and  beheve  that  the  said  plaintiff 
hath  behaved  and  demeaned  himself  dishonestly  and  corruptly  in  his 
said  office,  and  the  said  plaintiff  hath  been  and  is  brought  into  pub- 
lic contempt,  infamy,  and  disgrace,  and  hath  been  and  is  otherwise 
greatly  injured  and  damnified,  to  wit,  at,  &c. 


.  For    Words  imputing  Incontinence  to  an  unmarried    Woman, 
which  occasioned  special  damage  (f) . 

(s)  As  to  the  right  to  maintain  this  species  of  action,  see  vol.  T.  117. 

(0  See  the  case  of  More  v.  Meagher,  in  error.     Supra  vol.1.  20i.     1  Taunt. 


^S9  APPENDIX. 

(^General  inducement  of  good  character  as  in  Precedent  1,  from 
(^)  to  (B). 

And  for  that  whereas  also  the  said  plaintiff  hath  always  been  a 
virtuous,  modest,  and  chaste  subject,  and  until  the  committing  of  the 
grievances  hereinafter  mentioned  had  always  been  esteemed  to  be  of 
unblemished  reputation,  and  that  before  and  at  the  time  of  the  com- 
mitting of  the  said  grievances,  she  the  said  plaintiff  enjoyed  the  so- 
ciety and  conversation,  friendship  and  countenance  of  many  worthy 
and  estimable  subjects  of  this  realm,  to  wit,  of  A.  B.,  C.  D.,  &c. 
(naminy  tliem')  and  divers  others,  and  lived  associated  with  them  on 
terms  of  mutual  respect,  confidence,  and  intimacy,  and  was  by  divers 
of  those  persons  {naming  iJieni)  received  and  entertained  in  their 
respective  houses,  and  found  and  provided  by  them  respectively  with 
meat  and  drink  gratuitously,  and  wiihout  any  price  or  sum  of  money 
whatsoever,  by  her  paid  or  payable  for  the  same,  to  the  great  reduc- 
tion of  her  necessary  expenses,  of  living  and  maintaining  herself, 
and  the  great  increase  of  her  riches,  to  wit,  at,  &;c.  Yet  that  the 
said  defendant,  well  knowing  the  premises,  and  envying 
[  *390  ]  the  ^happiness  of  the  said  plaintiff,  and  maliciously  con- 
triving and  intending  to  injure  and  ruin  her  in  her  cha- 
racter, and  to  deprive  her  of  the  good  will,  society,  conversation, 
friendship,  and  commerce  of  all  her  friends,  relations,  and  acquaint- 
ances, and  to  impoverish  her,  and  deprive  her  of  all  the  benefits  and 
advantages  of  her  fortune  and  pecuniary  circumstances,  so  by  her 
received  and  receivable  as  aforesaid  heretofore,  to  wit,  on,  &c.,  at, 
&c.,  in  a  certain  discourse  which  he  the  said  defendant  then  and 
there  had  in  the  presence  and  hearing  of  divers  good  and  worthy 
subjects  of  this  realm,  of  and  concerning  the  said  plaintiff,  in  the 
presence  and  hearing  of  the  said  last  mentioned  subjects,  falsely  and 
maliciously  spoke  and  published,  of  and  concerning  the  said  plaintiff, 
the  several  false,  scandalous,  mahcious,  and  defamatory  words  fol- 
lowing, that  is  to  say,  (set  out  the  zvords  iwputing  incontinence  to 
the  plaintiff,  with  innuendoes.')  By  means  of  the  speaking  of  which 
several  false,  scandalous,  and  defamatory  words,  the  said  plaintiff 
hath  been,  and  is  greatly  injured  in  her  credit  and  reputation,  and 
brought  into  public  scandal,  infamy,  and  disgrace  with  and  amongst 
all  her  neighbours  and  other  good  and  worthy  subjects  of  the  realm, 
insomuch  that  the  said  last  mentioned  neighbours  subjects,  and 
friends,  especially  the  several  persons  hereinbefore  in  that  behalf 
named,  to  wit,  the  said  A.  B.,  C.  D.,  &c.  (m),  have,  by  reason  of 

39,  where  it  was  held  that  such  a  cleclaraliou  was  good,  and  the  plaintiff  below 
had  judgment  [1]. 

(u)  As  to  the  necessity  of  stating  the  names,  see  vol.  1.  p.  441.  442.  B.  N. 
P.  7.     Hartley  v.  Herring,  8  T.  R.  140. 

[1]  See  note  [l]-p.  202.  vol.  I. 


PRECEDENTS— DECLARATIONS.      390 

the  committing  of  the  said  grievances,  refused  to  hold  or  permit  any 
intercourse  or  society  with  her,  or  to  receive,  or  to  admit  her  into 
their  respective  houses  or  co'^npany,  or  to  find  or  provide  for  her, 
meat,  drink,  or  any  other  benefits  and  advantages,  in  any  manner 
whatsoever,  as  they  before  that  time  had  done,  and  otherwise  would 
have  continued  to  do,  whereby  the  plaintiff  hath  lost  all  those  valu- 
able benefits  and  advantages,  being  to  her  theretofore  of  great  value, 
to  wit,  of  the  value  of  lOOL,  and  hath  been  and  is  greatly  reduced 
and  prejudiced  in  her  fortunes  and  pecuniary  circumstances,  and  ob- 
liged to  incur  a  much  greater  expense  in  her  necessary 
living  *and  supporting  herself,  to  wit,  the  annual  amount  [  *391  ] 
of  100^..  than  she  theretofore  had  done,  and  otherwise 
would  have  continued  to  do,  and  hath  been,  and  is  by  means  of  the 
premises,  greatly  damnified  and  impoverished,  to  wit,  at,  &c. 


10.  Declaration  for  composing^  printing^  and  publishing  a  Libel. 

For' that  whereas  the  said  plaintiff  is  a  good,  true,  honest,  just 
and  faithful  subject  of  this  realm,  and  as  such  hath  always  behaved, 
and  conducted  himself,  and  until  the  committing  of  the  grievances 
by  the  said  defendant  as  hereinsfcer  mentioned,  was  alwavs  reputed, 
esteemed,  and  accepted  by  and  amongst  all  his  neighbours  and  other 
good  and  worthy  subjects  of  this  realm,  to  whom  he  was  in  any  wise 
known,  to  be  a  person  of  good  name,  fame,  and  credit,  to  wit,  at, 
&c.  And  whereas  he  the  said  plaintiff  hath  never  been  guilty,  nor 
until  the  time  of  the  committing  of  the  said  grievances,  as  herein- 
after mentioned,  been  suspected  to  have  been  guilty  of  the  offences 
and  misconduct  hereinaner  mentioned  to  have  been  imputed  to  him, 
or  of  any  such  offences  or  misconduct.  By  means  of  which  said 
several  premises,  he  the  said  plaintiff,  before  the  committing  of  the 
said  grievances  hereinafter  mentioned,  had  deservedly  obtained  the 
good  opinion  and  credit  of  all  his  neighbours  and  other  good  and 
worthy  subjects  of  this  realm,  to  whom  he  was  known,  to  wit,  at,  &;c. 
(x).  Yet  the  said  defendant,  well  knowing  the  premises,  but  contri- 
vin^r,  and  wickedly  and  maliciously  intending  to  injure  him  in  his 
said  good  name,  fame,  and  credit,  and  to  bring  him  into  public 
scandal,  infamy  and  disgrace,  with  and  amongst  all  his  neighbours 
and  other  good  and  worthy  subjects  of  this  realm,  and  to 
cause  it  to  bo  suspected  and  believed  by  *those  neigh-  [  *392  ] 
hours  and  subjects  that  he  the  said  plaintiff  had  been  and 

(.T)  It  is  usual  to  introduce  in  this  part  of  the  declaration,  by  way  of  further 
inducement,  such  extrinsic  facts,  the  averment  of  which  is  essential  to  the  cause 
of  action.     As  to  such  averments,  see  vol.  I.  391,  et  seq. 


392  APPENDIX. 

was  guilty  of  the  offences  and  misconduct  hereinafter  mentioned  to 
have  been  charged  upon  and  imputed  to  him,  and  to  vex,  harass, 
and  oppress  him  the  said  plaintiff,  on,  &c.  at,  &c.  aforesaid,  falsely, 
wickedly,  and  malicously  did  compose  (?/),  print,  (2),  and  publish, 
and  cause  (a)  and  procure  to  be  printed  and  published,  of  and  con- 
cerning the  said  A.  B.,  a  certain  false,  scandalous,  malicious,  and 
defamatory  libel,  containing  amongst  other  things  (if  part  only  be 
set  ouf)  in  one  part  thereof,  the  false,  scandalous,  malicious,  and  de- 
famatory words  and  matters  following  (6),  of  and  concerning  (c)  the 
said  plaintiff,  that  is  to  say,  (setting  out  the  libellous  jmssage  with 
apt  innuendoes,^  and  also  containing  in  another  pare  thereof,  the 
several  other  false,  scandalous,  mahcious,  and  defamatory  words  and 
matters  following,  of  and  concerning  the  said  plaintiff,  that  is  to  say, 
(setting  out  another  libellous  passage  ivith  apt  innuendoes^  and  also 
containing  in  another  part  thereof  the  several  other  false,  scandalous, 
malicious,  and  defamatory  words,  and  matters  following,  of  and  con- 
cerning the  said  plaintiff,  that  is  to  say,  (setting  out  another  libellous 

passage  with  apt  innuendoes) . 
[  *393  ]         *  Where  there  is  any  doubt  as  to  the  meaning  or  ap- 
plication of  the  libellous  matter,  it  is  usual  to  add  other 
counts,  zvith  suitable  variances  as  to  such  allegations.^ 

By  means  of  the  committing  of  which  said  several  grievances  the 
said  plaintiff  hath  been  and  is  greatly  injured  in  his  good  name, 
fame,  and  credit,  and  brought  into  public  scandal,  infamy,  and  dis- 
grace with  and  amongst  all  his  neighbours  and  other  good  and 
worthy  subjects  of  this  realm  to  whom  he  was  in  any  wise  known, 
insomuch  that  divers  of  those  neighbours  and  subjects,  to  whom  the 

(y)  The  plaintiff  on  such  a  count  may  have  a  verdict  for  the  publishing, 
though  no  proof  be  given  of  the  composing,  writing,  or  printing,  see  vol.  II.  p. 
50,  and  Starkie  on  Evidence,  tit.  Libel.     Variance. 

(z)  If  the  libel  has  been  published  in  a  public  newspaper,  it  is  usual  to  aver 
that  the  defendant  did  compose,  print,  and  publish  in  a  certain  public  newspaper, 
dfc,  and  not  unfrequently  the  title  of  the  newspaper  is  set  out ;  it  seems,  how- 
ever, 10  be  sufficient  to  allege  a  printing  and  publishing  simply,  and  danger  of 
variance  may  be  incurred  in  setting  forth  the  title  of  the  newspaper. 

(a)  Where  the  libel  is  in  writing,  it  is  usual  to  allege  a?  follows — did  com- 
pose, ivrite,  and  publish ,  and  cause  and  procure  to  be  written  and  published,  of 
and  concerning,  <5fc.,  a  false,  scandalous,  malicious,  and  defamatory  libel,  djfc, 
and  sometimes  it  is  added,  in  the  form  of  a  letter  to  the  plaintifl",  &c.,  but  it 
does  not  appear  to  be  necessary  that  the  particular  mode  or  form  of  writing  or 
publishing  should  be  set  out. 

This  allegation,  arac?  cause,  (^c.  though  usual,  is  wholly  superfluous  ;  for  in 
legal  consideration  a  man  does  that  which  he  causes  to  be  done  ;  an  allegation 
in  the  disjunctive  would  render  the  declaration  demurrable. — Supra  vol.  I.  361. 

(b)  As  to  the  statement  of  the  libel,  see  vol.  I.  366,  &c. 

(c)  As  10  the  necessity  of  this  allegation,  in  order  to  connect  the  libel  with 
the  plaintitf,  and  such  extrinsic  facts  as  are  previously  stated,  see  vol.  I.  412, 
et  seq. 


TRECEDENTS— DECLARATIONS.  893 

innocence  of  the  said  plaintiff  was  unknown,  have,  on  occasion  of 
the  committing  of  the  said  several  grievances  by  the  said  defendant, 
from  thence  hitherto  suspected  and  beheved,  and  still  do  suspect 
and  believe  the  said  A.  B.  to  have  been  guilty  of  the  offences  and 
improper  conduct  imputed  to  him  as  aforesaid,  and  have  by  reason 
of  the  committing  of  the  said  several  grievances  by  the  said  CD., 
from  thence  hitherto  refused,  and  still  do  refuse  to  have  any  ac- 
quaintance, intercourse,  or  discourse  with  the  said  plaintiff,  and  the 
said  plaintiff  hath  been,  and  is,  by  means  of  the  premises,  otherwise 
greatly  injured  and  damnified,  to  wit,  at,  &c.,  to  the  damage,  &c. 


11.  Declaration  for  a  malicious  Prosecution  of  a  Charge  of  Fel- 
ony before  a  Magistrate,  and  afterivards  hy  Indictment  at  the 
Sessions,  ivhere  the  Grand  Jury  found  no  True  Bill. 

(^Greneral  inducement  of  good  character,  supra,  Precedent  l,from 
(^A)  to  (C),  and  then  proceed.) 

Yet  the  said  defendant,  well  knowing  the  premises,  but  contriv- 
ing and  maliciously  intending  to  injure  the  said  plaintiff  in  his  good 
name,  fame  and  credit,  and  to  bring  him  into  public  scandal,  infamy, 
and  digrace,  and  to  cause  him  to  be  imprisoned  and  unjustly  pun- 
ished, and  to  impoverish,  oppress,  and  wholly  ruin  him,  heretofore, 
to  wit,  on,  &c.,  at,  &c.,  falsely  and  maliciously,  and  with- 
out any  reasonable  and  probable  cause  *whatever,  al-  [  *394  ] 
leged  and  objected  against  the  said  plaintiff,  that  he  the 
said  plaintiff  had  before  then  feloniously  stolen,  taken,  and  carried 
away,  {state  the  particulars')  of  him  the  said  defendant  ;  and  then 
and  there,  and  for  the  said  supposed  offence,  falsely  and  maliciously 
and  without  any  reasonable  or  probable  cause,  arrested,  and  caused, 
and  procured  the  said  plaintiff  to  be  arrested  by  his  body,  and  car- 
ried and  conveyed  him,  and  caused  and  procured  him  to  be  carried 
and  conveyed  in  custody  before  one  M.  N.,  Esq.,  then,  and  still 
being  one  of  the  justices  of  our  Lord  the  King,  in  and  for  the  said 

county  of ,  and  also  to  hear  and  determine  divers  felonies 

and  trespasses,  and  other  misdemeanors  committed  within  the  said 
county,  and  to  be  examined  by  and  before  the  said  M.  N ,  so  being 
such  Justice  as  aforesaid,  of,  upon,  and  for  the  said  supposed  of- 
fence, and  then  and  there,  falsely  and  maliciously,  and  without  any 
reasonable  or  probable  cause  whatever,  caused  and  procured  the 
said  M.  N.,  so  being  such  Justice  as  aforesaid,  to  commit  the  said 
plaintiff  into  the  custody  of  the  keeper  of  a  certain  prison  of  our 
said  Lord  the  King,  in  the  said  county,  to  wit,  a  certain  prison  of 
our  said  Lord  the  King,  called ,  and  to  make  out  and  grant, 


S94  APPENDIX. 

under  his  hand  and  seal,  as  such  Justice  as  aforesaid,  a  certain  war- 
rant or  mandate,  directed  to  the  said  keeper  of  the  aforesaid  prison, 
or  his  deputy,  bearing  date,  on,  &c.,  whereby  the  said  Justice  com- 
manded (/),  authorized,  and  required  the  said  keeper  of  the  said 
prison,  or  his  deputy,  to  receive  into  his  custody  the  body  of  the 
said  plaintiff,  for  further  examination  as  to  the  said  of- 
[  *395  ]  fence  imputed  to  and  ^charged  upon  him  the  said  plain- 
tiff as  aforesaid,  on  Thursday  morning  then  next,  at  ten 
of  the  clock,  and  him  safely  keep  in  his  custody  until  he  should 
thence  be  discharged  by  due  course  of  law,  to  wit,  at,  &c.  afore- 
said :  and  that  the  said  defendant  also  then  and  there  maliciously, 
and  without  any  reasonable  or  probable  cause,  caused  and  procured 
the  said  plaintiff  to  be  kept  and  detained  in  custody,  in  the  aforesaid 
prison  of  our  said  Lord  the  King,  under  and  by  virtue  of  the  afore- 
said warrant  or  mandate,  from  thefice  until  and  upon,  &c,  and  during 
that  time,  and  afterwards,  on,  &c.  aforesaid,  a';,  &c.,  and  before  the 
aforesaid  Justice,  falsely  and  maliciously,  and  without  any  reason- 
able or  probable  cause  whatever,  again  alleged  and  complained 
against  him  the  said  plaintiff,  that  he  the  said  plaintiff  had  before 
then  feloniously  taken  and  carried  SLVfuj,  (^set  out  the  pai'ticulars^ 
of  him  the  said  defendant,  and  then  and  there  falsely  and  maliciously 
and  without  any  reasonable  or  probable  cause  whatever,  caused  and 
procured  the  said  M-  N.  so  being  such  Justice,  to  make  and 
grant  a  certain  other  warrant,  under  his  hand  and  seal  as  such 
Justice  as  aforesaid,  bearing  date,  &2.,  and  directed  to  the  afore- 
said keeper  of  the  said  prison,  called ,  or  his  deputy,  where- 
by he  the  said  Justice  commanded  (^),  and  required,  and  authoriz- 
ed the  said  keeper,  or  his  deputy,  to  detain  in  his  custody  the  body 
of  the  said  plainiiff  so  charged  and  accused  before  him  the  said 
Justice  as  last  aforesaid,  and  him  safely  keep  in  his  custody  until  he 
should  be  discharged  by  due  course  of  law  ;  and  that  the  said  de- 
fendant did  then  and  there  falsely  and  maliciously,  without  any 
reasonable  or  probable  cause  whatever,  cause  and  procure  tha  said 

(/)  This  of  course  should  be  according  to  the  fact.  It  does  not  appear  to 
be  necessary  to  set  out  the  particulars  of  such  warrant  to  detain  the  prisoner  for 
further  examination ;  it  would,  it  seems,  be  sufficient  to  aver  that  the  defendant 
maliciously  and  without  any  reasonable  or  probable  cause,  caused  and  procured 
the  said  Justice  to  order  that  the  said  plaintiff  should  be  detained  and  confined 
in  a  certain  prison  tliere,  in  order  to  his  further  examination  as  to  the  said  sup- 
posed offence,  so  imposed  and  charged  on  him  the  said  plaintiff,  as  aforesaid, 
and  maliciously,  and  without  any  reasonable  or  probable  cause,  caused  and  pro-, 
cured  the  said  plaintiff  to  be  kept  and  detained   in  the  said  prison  there  for  a 

long  space  of  time,  to  wit,  for  the  space  of days,  and   afterwards,  to  wit 

on,  &c.,  at,  &c. 

{g)  This  of  course  must  be  stated  according  to  the  warrant  itself,  which  must 
be  produced  and  proved. 


PRECEDENTS— DECLARATIONS.  895 

plaintiff  to  be  detained  and  kept  in  custody,  as  well  in  the  said  prison 

called ,  as  aforesaid,  as  in  a  certain  other  prison  of  our  said 

Lord  the  now  King,  called ,  under,  and  by  virtue,  and  in  conse- 
quence of  the  said  last-mentioned  warrant  or  mandate,  for  a  lon<^  space 
of  time,  and  until  his  discharge  hereafter  mentioned,  to  wit,  at  &c. 
aforesaid.     And  the  said  plaintiff,  in   fact,  further  saith,  ' 

that  whilst  *he  tlie  said  plaintiff  was  so  in  custody  as  afore-     [  *396  ] 
said,  to  wit,  at  (A)  the  general  quarter  sessions  of  the 
peace  of  (i)  our  said  Lord  the  King,  holden  in  and  for  the  county 

f.. '  at ,  on,  &c.  before  A.  B.,  Esq.,  &c.,  and  others  their 

tellows  Justices  of  our  said  Lord  the  King,  assigned  to  keep  the 
•  peace,  and  also  to  hear  and  determine  divers  felonies,  trespasses, 
and  pther  misdemeanors  in  the  said  county  committed,  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause  whatever, 
preferred,  and  presented,  and  caused  to  be  preferred  and  presented 
to  the  jurors  of  the  Grand  Inquest  then  and  there,  to  wit,  at  the 
said  sessions,  sworn  and  charged  to  inquire  for  our  Lord  the  Kin<^, 

and  the   body  of  the  said  county  of ,  a  certain  bill  (k)  (of 

indictment)  against  the  said  plaintiff,  by  the  name  and  description 
of,  &c.,  charging,  and  accusing,  and  purporting,  that  the  said  plain- 
tiff, on,  &c.  (set  out  the  substafice  of  the  charge)  (Z),  with  the  intent 
that  the  same  should  then  and  there  be  found  a  true  bill  by  the  said 
jurors,  which  said  bill  the  said  jurors  of  the  said  Grand  Inquest  did 
then  and  there  return  into  the  said  court  of  the  said  ses- 
sions so  holden  as  aforesaid,  not  found  (m),  *whereupon  [  *397  ] 
the  said  plaintiff  was  then  and  there  discharged  from  and 
out  of  custody,  and  the  said  prosecution  and  complaint  against  him 
the  said  plaintiff  then  and  there  became  and  were  abandoned  by  the 
said  defendant,  and  wholly  ended  and  determined. 

{h)  It  seems  to  be  now  settled  that  a  defect  in  the  jurisdiction  of  the  court,  or 
in  the  indictment,  will  not  preclude  the  plaintiff  from  maintaining  his  action, 
and,  therefore,  no  averment  as  to  the  competency  of  the  court  is  necessary  — 
Supra  vol.  I.  446.  2  Wils.  102.  Com.  Dig-.  Action  on  the  case  for  a  conspira- 
cy, c.  4.  Rol.  Ab.  Action  Sur  Case,  50.    4  T.  R.  247.     2  Str.  C91.    1  Salk.  15. 

(J)  As  to  setting  out  tlie  style  of  court,  see  vol.  1.446. 

{k)  Until  a  bill  is  found  by  the  Grand  Jury,  it  is  a  bill  and  not  an  indictment, 
and  ouoht  in  strictness  to  be  so  described,  vide  supra  vol.  I.  445.     Com.  Dig.  Ind. 
B.   STaunt.  187.  1  Salk.  376.    But  it  is  not  unusual,  where  a  bill  has  beenlbundj 
to  allege  that  the  defendant  "  indicted,  and  caused  and  procured  to  be  indicted 
the  said  plaintiff."     See  2  Burr.  993. 

{I]  As  to  setting  forth  cumulative  charges,  see  vol.  I  446.  It  is  sufficient  to 
prove  that  any  one  of  the  charges  in  the  bill  of  indictment  was  maliciously  pre- 
ferred,  see  vol  I.  446.  Reed  v.  Taylor,  4  Taunt.  616.  The  charge  should  be 
set  out  in  substance  only,  vol.  I.  447.  As  to  the  degree  of  particularity  and  ac- 
curacy with  which  this  should  be  done,  see  vol.  I.  447. 

(m)  The  declaration  must  show  that  the  prosecution  was  determined,  supra 
vol.  I.  449, 450.  The  allegation  that  the  Grand  Jury  threw  out  the  bill,  serves 
sufficiently  to  show  a  determination.— 2  T.  R.  232.     Suora  vol.  T   451 

Vol.  II.  96  * 


897  APPENDIX. 

'Ind  Count. — And  the  said  defendant,  further  contriving  and  in- 
tending as  aforesaid,  at  the  aforesaid  general  quarter  sessions  of  the 
peace,  holden  in  and  for  the  county  of ,  at,  &c.  on,  &c.,  be- 
fore, &c.  and  others  their  fellows  Justices  of  our  said  Lord  the 
King,  assigned  to  keep  the  peace,  &c.,  and  also  to  hear  and  deter- 
mine divers  felonies,  trespasses,  and  other  misdemeanors  in  the  said 
county  committed,  falsely  and  maliciously,  and  without  any  reason- 
able or  probable  cause  whatever,  preferred  and  prosecuted,  and  caus- 
ed to  be  preferred  and  presented  to  the  jurors  of  the  Grand  Inquest 
then  and  ihe're,  to  wit,  at  the  said  sessions,  sworn  and  charged  to 
inquire  for  our  said  Lord  the  King  and  the  body  of  the  said  county, 
a  certain  other  bill  of  indictment  against  the  said  plaintiff,  by  the 
name,  &c.,  of,  &c.,  charging,  accusing,  and  purporting,  that  the 
said  plaintiff,  on  the  aforesaid  day,  &c.,  feloniously  stole,  (set  out 
the  particulars')  of  the  said  defendant,  which  last  mentioned  bill  of 
indictment  the  jurors  of  the  said  Grand  Inquest  did  then  and  there 
return  into  the  said  court  of  the  said  sessions  so  holden  as  aforesaid, 
not  found  (n). 

Srd  Count. — And  for  that  whereas  the  said  defendant  further 
contriving  and  intending  as  aforesaid,  on,  &c.,  at,  &c.,  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause  what- 
soever, imposed  the  crime  of  felony  (o)  on  him  the  eaid  plaintiff,  by 
means  of  which  said  several  premises,  the  said  plaintiff  is  greatly 
hurt,  injured,  and  prejudiced  in  his  said  good  name,  fame,  and  cre- 
dit, and  is  brought  into  great  scandal,  ignominy,  and  disgrace  amongst 
all  his  neighbours  and  other  good  and  worthy  subjects  of 
[  *3.S8  ]  the  realm,  and  hath  been  taken,  and  suspecte'd  to  'be  a 
felon  and  a  thief,  and  he  the  said  plaintiff  was  also  im- 
prisoned, and  kept  and  detained  in  prison,  in  manner  and  for  the 
time  hereinbefore  mentioned,  and  suffered  and  underwent  many  and 
great  troubles  and  labours,  both  of  body  and  mind,  and  during  all 
which  time  he  was  hindered  and  prevented  from  managing,  conduct- 
ing, and  transacting  his  necessary  affairs  and  business,  and  was  forced 
and  obliged  to  lay  out  and  expend  a  large  sum  of  money  in  and  about 
the  obtaining  his  release  from  and  out  of  custody  as  aforesaid,  and 
ix).  and  about  the  defence  of  himself  and  the  manifestation  of  his  in- 
nocence in  the  premises  so  alleged  and  objected  against  him  as  afore- 
said, and  he  the  said  plaintiff  also  was,  hath  been,  and  is,  on  occa- 
sion of  the  several  premises  aforesaid,  otherwise  greatly  injured  and 
damnified,  to  wit,  6tc. 

(n)  Supra  note  (m). 

(o)  As  to  the  sufficiency  of  this  general  count,  see  vol.  I.  448.     Da^is  v.  Noak, 
1  Starkie's  C.  377.     Blizard  v.  Kelly,  2  B.  and  C.  285. 


PRECEDENTS— DECLARATIONS.  398 

12.  General  Form  of  Declaration  for  a  malicious  Prosecution  by  in- 
dictment at  the  Assizer  or  Sessio7is,w7iere  the  Plaintiff  tvas  acquit- 
ted. 

For  that  the  said  defendant  maliciously  and  wickedly  intending  to 
oppress  and  injure  hiin  the  said  plaintiff,  on  &c.,  at,  &c.,  maliciou1lj» 
and  without  any  reasonable  or  probable  cause  whatsoever,  charged 
the  said  plaintiff  with  the  crime  of  felony,  and  caased  and  procured 
the  said  plaintiff  to  be  arrested  and  committed  to  the  common  goal 

for  the  county  of ,  and  there  to  be  imprisoned,  by  reason  of 

that  charge,  for  a  long  space  of  time,  to  wit,  for  the  space  of , 

and  afterwards,  to  wit,  on,  &c.,  at  the  session  of  our  Lord  the  King,  of 
oyer  and  terminer,  &c.  (o),  holden  at,  &c.,  in  and  for 

the  said  county  of ,  before,  &c.,  maliciously,  *and     [  •-399  ] 

without  any  reasonable  or  probable  cause  indicted  and 
caused  and  procured  to  be  indicted  the  said  plaintiff,  for  that  he  the 
said  plaintiff  (^),  on,  &c.,  at,  &c.,  (set  forth  the  substance  of  the 
charge,')  and  that  the  said  defendant  falsely  and  maliciously,  and 
without  any  reasonable  or  probable  cause  Avhatsoever,  prosecuted 
and  caused  and  procured  to  be  prosecuted  the  said  indictment 
against  the  said  plaintiff,  to  wit,  at,  &c.,  until  the  said  plaintiff,  af- 
terwards, to  wit,  at  the  (q)   delivery  of  the  goal  of  our  said  Lord 

the  King,    of  his  said  county  of ,  of  the  prisoners  therein 

holden,  on  &c.,  at  &c.,  before,  &c.,  assigned  to  deliver  the  goal  of 
the  said  county  of  the  prisoners  therein  being,  was  duly,  by  a  jury 
of  the  said  county,  and  by  the  judgment  of  the  said  court  of  gaol 
delivery  (r),  duiy  acquitted  of  the  premises  in  the  said  indictment 
charged,  and  the  said  charge  and  prosecution  then  and  there  became 
and  were  wholly  ended  and  determined. 

Add  a  general  count  for  imposing  the  crime  of  felony,  as  in 
Precedent  11. 

By  means  whereof  he  the  said  plaintiff  hath  been  and  is  greatly 
injured  and  aggrieved  in  his  good  name,  fame,  and  credit,  and  hath 
suffered  and  undergone  great  trouble  and  labor  of  his  body,  and 

(o)  Or  if  ihe  prosecution  were  at  the  sessions,  thus,  at  the  General  Quarter  Ses- 
sions of  the  peace,  holden  {by  adjournment,  if  that  be  a  fact,)  in  and  for  the  said 

county  of ,  on  &c.,at,  &c.,  before  A.  B.,C.  D.  and  others,  their  fellows, 

Justices  of  our  said  Lord  the  King,  assigned  to  keep  the  peace  in  the  county  of 
and  also  to  hear  and  determine  divers  felonies,  trespasses,  and  oiher  mis- 
demeanors committed  in  thai  county.  This  statement  ought  of  course  to  ac- 
cord with  the  caption  of  the  indictment  and  record  of  acquittal. 

(p)  See  vol.  I.  p.  446. 

{tj)  Or  if  the  acquittal  were  at  the  quarter  sessions,  thus — "  General  Quarter 
Sessions  of  the  peace  of  our  said  Lord  the  King,  holden  (by  adjournment,  if 
xuch  be  the  fact)  on,  &c.,  at,  &c.,  before,  &c."  The  statenaent  should  agree 
with  the  record  of  acquittal. 

(r)  Or  Quarter  Sessions,  according  to  the  fact. 


899  APPENDIX. 

anxiety  of  mind,  and  been  put  to  great  expense  of  hia  moneys,  to 

•wit,  to  the  amount  of ,in  the  manifesting  his  innocence  and 

procuring  his  acquittal,  and  hath  also  been  wholly  hindered  and 
prevented  from  transacting  his  necessary  business  and  affairs,  and 
hath  been,  and  is  otherwise  greatly  injured,  prejudiced,  and  aggriev- 
ed, to  wit,  at,  &c. 


*13.  Plea  of  the  General  Issue  (s). 

And  the  said  defendant,  by  E.  F.  his  attorney,  comes 
[  MOO  ]  and  defends  the  wrong  and  injury,  when,  &c.  and  saith 
that  he  is  not  guilty  of  the  premises  to  above  laid  his 
charge  in  manner  and  form  as  the  said  plaiatiif  hath  above  complain- 
ed against  him,  and  of  this  he  the  said  defendant  puts  himself  upon 
the  country,  &;c. 

14.  Plea  of  Justification  of  Words  of  Felony, 

And  for  a  further  plea  in  this  behalf  (s),  the  said  defendant,  by  leave 
of  the  court  here  for  this  purpose  first  had  and  obtained,  according  to 
the  form  of  the  statute  in  such  case  made  and  provided,  saith  that 
the  said  plaintiff  ought  not  to  have  or  maintain  his  aforesaid  action 
thereof  against  him  the  said  defendant,  because  he  saith  that  the 
said  plaintiff  before  the  speaking  and  publishing  of  the  words  in  the 
said  declaration  mentioned^  to  wit,  on,  &c..  at,  &c.  (f)  feloniously 
did  steal,  take,  and  carry  away,  (^describing  the  goods')  (u},  of  the 
goods  and  chattels  of  him  the  said  defendant.  Wherefore  he  the 
said  defendant  at  the  said  several  times  in  the  said  de- 
[  *401  ]  claration  mentioned,  did  speak  and  publish  of  and  concern- 
ing "the  said  plaintiff  the  said  several  words  in  the  said 
declaration  mentioned  (x),  as  he  lawfully  might  for  the  cause  afore- 
said, and  this  he  the  said  defendant  is  ready  to  verify.     Wherefore 

(s)  As  to  the  sufficiency  of  this  plea  to  enable  the  defendant  to  go  into  evi- 
dence in  his  defence,  see  vol.  I.  453.  Where  a  special  justification  is  pleaded 
it  is  frequentfy  inexpedient  to  plead  the  general  issue,  for  the  effect  is  to  give  the 
plaintiff  the  openingf  and  reply. 

(s)  As  to  the  policy  of  pleading  the  general  issue  with  this  plea,  see  the  last 
preceding  note. 

{t}  Where  the  justification  is  local,  the  defendant  j)ught  to  plead  in  the  county 
where  the  matter  of  justification  arose,  see  Cratl  v.  Boite,  1  Saund.  247,  1  Will. 
Saund.  247,  note  1,  and  at  common  law  the  case  ought  to  be  tried  there.  But  a 
trial  in  a  different  county  is  aided  by  the  st.  16,  17  C.  2,  c.  8.      Vol.  I.  p.  476. 

(m)  As  to  the  description  of  the  felony  with  reference  to  the  alleged  slander 
see  vol.  I.  478. 

(x)  As  to  the  necessity  for  confessing  the  speaking  of  the  words,  see  vol.  I. 
475. 


PRECEDENTS— DECLARATIONS.      401 

he  prays  judgment  u  the  said  plaintiff  ought  to  have  or  maintain 
his  aforesaid  action  thereof  against  him,  &c. 


15.     Plea  of  Justification  of  Words  of  Perjury. 

Because,  he  says,  that  before  the  speaking  and  pubhshing  of  the  said 

words,  of  and  concerning  the  said  plaintiff,  in  the  said counts 

mentioned,  to  wit,  on,  &c.  at,  &c.  at  the  assizes  then  and  there  holden 
before '■ ,  then  Chief  Justice  of  our  said  Lord  the  King,  assign- 
ed to  hold  pleas  before  the  King  himself,  and ,  then  one  of 

the  Justices  of  our  said  Lord  the  King,  assigned  to  hold  pleas  be- 
fore the  King  himself,  justices  of  our  said  Lord  the  King,  appomted 
to  take  the  assizes  for  the  said  county,  according  to  the  form  of 
the  statute  in  such  case  made  and  provided,  a  certain  issue  be- 
fore then  duly  joined  in  an  action  brought  and  prosecuted  in  the 

court  of  our  said  Lord  the  King, ■  and  his  companions,  then 

Justices  of  our  said  Lord  the  King,  of  the   bench  at  Westmrnster, 

in  the  county  of  Middlesex,  by  and   at  the  suit  of  one ,  as 

the  plaintiff,  against  one  ■ ,  as  the  defendant,  for  a  suppos- 
ed breach  of  certain  promises   and  undertakmgs,  alleged  by  the 

said to  have  been  made  to  him  by  the  said ,  and  not 

performed,  came  on  to  be  tried  in  due  form  of  law,  and  was  then 
and  there  tried  by  a  jurv  of  the  country  in  that  behalf,  duly  ta- 
ken and  sworn  between  the  parties  aforesaid,  and  upon  such  trial 
of  the  said  issue,  the  said  plaintiff  appeared  as  a  witness  for  and 

on   behalf  of  the  said ^,  the  plaintiff  in  the  said 

action,  and  the  'said  plaintiff  was  then  and  there  in  [  4U:i  J 
open  court  at  the  said  assizes,  holden  as  aforesaid,  before 

tie  said and ,  the  Justices  aforesaid  duly  sworn,  and 

took  his  corporal  oath  upon  the  holy  gospel  of  God,  to  speak  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  touching  and 
concerning  the  matters  in  question  in  the  said  issue,  (they  the 

gaid ^— and ,  there    having,   sufficient    and    competent 

power  and  authority  to  administer  the  said  oath  to  the  said  plain- 
tiff in  that  behalf,)  and  upon  the  said  trial  of  the  said  issue,  cer- 
tain questions  then  and  there  became  and  were  material,  to  wit, 
whether,  &c.  (here  state  the  questions  according  to  the  Jaet,  ana 
as  they  relate  to  the  charge  of  perjury  against  the  'plaintiff,)  ana 
the  said  defendant  further  says,  that  the  said  plaintiff  being  so 
sworn  as  aforesaid,  upon  his  oath  aforesaid,  then  and  there  to  wit, 
on,  &c.  aforesaid,  at,  &c.  aforesaid,  falsely  wickedly,  wilfully,  ma- 
liciously, and  corruptly,  and  by  his  own  act  and  consent,_  did  say,  ae- 
pose,  swear,  and  give  in  evidence,  amongst  other   things,  at  ana 


402  APPENDIX. 

upon  the  said  trial,  to  and  before  the  said  jurors  so  sworn  to  try 
the  said  issue  as  aforesaid,  and  the  justices  aforesaid,  that,  &c. 
(Jiere  state  that  part  of  the  plaintiff  ^ s  evidence  in  which  he  commit- 
ted the  ferjury^  whereas  in  truth  and  in  fact,  &n.  (litre  negative 
the 'plaintiff '' 8  evidence  as  in  an  indictment  for  perjury^  and  the  said 
plaintiif  did  thereby,  in  the  said  court,  at  the  said  assizes  so  hold- 
en  as  aforesaid,  upon  his  said  oath  upon  the  trial  of  the  said  issue, 
falsely,  wickedly,  wilfully,  and  corruptly,  commit  wilful  and  corrupt 
perjury,  wherefore  the  said  defendant,  at  the  said  several  times,  when, 

&c.  in  the  said counts  mentioned,  at,  &c.  aforesaid,   spoke 

and  published  of  and  concerning  the  said  plaintiff  the  several  words 
in  the  said counts  mentioned  to  have  been  spoken  and  pub- 
lished by  him  the  said  defendant,  of  and  concerning  the  said  plaintiff, 
as  it  was  lawful  for  him  to  do  for  the  cause  aforesaid.  And  this,  &c. 
(as  in  precedent  14.) 


*16.  Plea  of  Justification  to  a  Declaration  for  a  Libel  on  a  Dissent- 
ing Minister,  charging  him   with  having  uttered  per- 
[  403  ]         sonal  Invectives  from  the  Pulpit  against  a  third  per- 
son (y'). 

That  before  and  at  the  time  of  the  speaking  and  publishing  of 
the  several  scandalous  words  by  the  said  plaintiff,  as  hereinafter 
mentioned,  one  Margaret  Fair  did  assist  in  the  management  and 
conduct  of  a  certain  Sunday  School,  and  was  a  person  of  distin- 
guished merit  and  spotless  reputation,  and  that  the  plaintiff,  well 
knowing  the  premises,  before  the  several  times  of  printing  and 
publishing  the  several  supposed  libels  by  the  defendants,  as  in  the 
declaration  mentioned,  to  wit,  on  the  6ch  of  April,  1823,  at  Great 
Marlow  aforesaid,  just  before  his  preaching  and  delivering  a  certain 
discourse  or  sermon,  then  and  there  by  him,  as  such  pastor  or  minis-, 
ter  addressed  to  a  certain  congregation  of  the  said  dissenters,  as-" 
sembled  for  the  purpose  of  (amongst  other  things)  hearing  the  said 
discourse  or  sermon,  in  a  certain  chapel,  and  whilst  he  the  plaintiff 
was  officiating  in  the  said  chapel  as  pastor  or  minister,  spoke  and 
published,  from  a  certain  part  or  station  of  the  chapel,  assigned  to 
him  as  pastor  or  minister  for  the  preaching  and  delivering  of  the  dis- 
course or  sermon,  and  to  and  in  the  presence  of  the  congregation, 

(y)  See  Edwards  v.  Bell,  1  Bingh.  403.  On  a  motion  for  judgment  for  the 
plaintiff  non  obstante  veredicto,  the  plea  was  held  to  be  an  answer  to  the  declara- 
tion. 


PRECEDENTS— DECLARATIONS.  40S 

of  and  concerning  the  said  Margaret  Fair,  these  scandalous  words 
following : — "  I  have  something  to  say  which  I  have  thought  of  say- 
ing some  time,  namely,  the  improper  conduct  of  one  of  the  female 
teachers ;  her  name  is  Miss  Fair,  her  conduct  is  a  bad  example  and 
disgrace  to  the  school,  and  if  any  of  the  children  dare  ask  her  to  go 
home,  she  shall  be  turned  out  of  the  school  and  never  enter  it  again. 
Miss  Fair  does  more  harm  than  good."  And  thereby  then  and 
there  gave  great  offence  to  divers  of  the  said  dissenters,  to  wit,  one 
*Joseph  Wright,  the  elder,  one,  &c.,  and  occasioned  a 
serious  misunderstanding  amongst  the  said  dissenters  in  [  *404  ] 
the  declaration  mentioned.  Wherefore  the  said  defend- 
ants did  afterwards,  to  wit,  at  the  several  times,  &c.,  in  the  declara- 
tion mentioned,  print  and  publish  the  supposed  libels  in  the  declara- 
tion mentioned,  as  they  lawfully  might  for  the  cause  aforesaid,  Avhlch 
are  the  same  printing  and  publishing  the  supposed  libels  in  ihe  de- 
claration mentioned,  and  this  they  are  ready  to  verify,  wherefore 
they  pray  judgment,  if  the  said  plaintiff  ought  to  have  or  maintain 
his  aforesaid  action  thereof  against  them,  &c.  There  were  oilier 
pleas  to  the  same  effect. 


17.  Greneral  Replication  de  injuria,  ^c.  to  Pleas  of  Justification. 

And  as  to  the  said  pleas  of  the  said  defendant  by  him  secondly 
and  thirdly  above  pleaded,  the  said  plaintiff  saith  that  he,  by  reason 
of  any  thing  by  the  said  defendant  in  those  pleas  above  alleged, 
ought  not  to  be  barred  from  having  and  maintaining  his  aforesaid 
action  against  the  said  defendant,  in  respect  of  the  said  grievance  in 
the  said  declaration  mentioned  (or  in  the  said  first  and  second  counts 
mentioned  ;  or  in  the  introductory  parts  of  the  said  second  and  third 
pleas  mentioned,)  because  he  saith  that  the  said  defendant,  at  the 
said  times,  when,  &c.,  in  the  said  declaration  (or  in  the  said  first 
and  second  counts,  or  either  of  them,  or  in  the  introductory  parts  of 
the  said  second  and  third  pleas,  or  either  of  them,)  mentioned  of 
his  own  wrong,  and  without  the  cause  by  him  the  said  defendant  in 
bis  said  second  and  third  pleas,  or  either  of  them  mentioned,  did 
commit  the  said  grievances  (a)  in  the  said  declaration  (or  first  and 
second  counts,  or  introductory  parts  of  the  said  second 
and  third  pleas,)  *mentioned,  in  manner  and  form  as  the  [  *40r)  } 
said  plaintiff  hath  above  thereof  complained  against  him 
the  said  defendant,  to  wit,  at,  &c.  And  this  he  the  said  plaintiff 
prays  may  be  inquired  of  by  the  country,  &c. 

(a)  Formerly  it  was  usual  to  repeat  the  words  in  the  replication,  see  Croft  v. 
Boite,  1  Saund.  244,  but  this  is  wholly  unnecessary. — See  1  Will,  Saund.  244, 
a.  note  (7). 


405  APPENDIX. 


18.  Information^  hy  the  Attorriey- General,  for  a  Libel  against  a 
Foreign  Potentate  (6). 

That  before  and  at  the  times  of  the  printing  and  publication  of 
the  scandalous,  malicious,  and  defamatory  libels  and  libellous 
matters  and  things  after  mentioned,  there  subsisted,  and  now 
subsists  friendship  and  peace  between  our  Sovereign  Lord  the 
King  and  the  French  Republic,  and  the  subjects  of  our  said  Lord  the 
King  and  the  citizens  of  the  said  Republic  ;  and  that  before  and  at 
those  times,  citizen  Napoleon  Bonaparte  was  and  yet  is  First  Consul 
of  the  said  French  Republic,  to  wit,  at  the  parish  of  St.  Anne,  with- 
in the  liberty  of  Westminster,  in  the  county  of  Middlesex  ;  and  that 
Jean  Peltier,  late  of  Westminster,  in  the  county  of  Middlesex,  gen- 
tleman, well  knowing  the  premises  aforesaid,  but  being  a  malicious 
and  ill  disposed  person,  and  unlawfully  and  maliciously  devising  and 
intending  to  traduce,  defame,  and  vilify  the  said  Napoleon  Bonaparte, 
and  to  bring  him  into  great  hatred  and  contempt,  as  well  among  the 
liege  subjects  of  our  said  Lord  the  King,  as  among  the  citizens  of  the 
said  Republic,  and  to  excite  and  provoke  the  citizens  of  the  said  Re- 
public, by  force  of  arms  to  deprive  the  said  Napoleon  Bonaparte  of 
his  consular  office  and  magistracy  in  the  said  Republic,  and  to  kill 
and  destroy  the  said  Napoleon  Bonaparte,  and  also  unlawfully  and 
maliciously  devising  as  much  as  in  him,  the  said  Jean  Peltier,  lay,  to 
interrupt,  disturb,  and  destroy  the  friendship  and  peace  subsisting 
between  our  said  Lord  the  King  and  his  subjects,  and 
[  *406  ]  the  said  Napoleon  *Bonaparte,  the  French  Republic,  and 
the  citizens  of  the  same  Republic,  and  to  excite  animosi- 
ty, jealousy,  and  hatred  in  the  said  Napoleon  Bonaparte  against  our 
said  Lord  the  King  and  his  subjects,  on  the  16  th  day  of  August,  in 
the  forty-second  year  of  the  reign  of  our  Sovereign  Lord  George  the 
Third,  by  the  grace  of  God,  of  the  United  Kingdom  of  Great  Bri- 
tain and  Ireland,  King,  Defender  of  the  Faith  ;  at  the  parish  of  St. 
Anne,  within  the  Uberty  of  Westminster,  in  the  county  of  Middlesex, 
unlawfully  and  maliciously  did  print  and  publish,  and  cause  and  pro- 
cure to  be  printed  and  published,  a  most  scandalous  and  malicious  li- 
bel, in  the  French  language,  of  and  concerning  the  said  Napoleon 
Bonaparte,  that  is  to  say,  one  part  thereof  to  the  tenor  following,  that 
is  to  say,  "  Le  18  Brumaire,  An  viii.  Ode  attributee  a  Chenier, 
"  Quelles  tempetes  efifroyables 
"  Grondent  sur  les  flots  dechaines,"  &c. 
And  in  another  part  thereof  to  the  tenor  following,  that  is  to  say, 
"  Deja  dans  sa  rage  insolente,"  &c. 
(b)  This  was  the  form  used  in  Peltier's  Case.     Supra  vol.  II.  p.  218J 


PRECEDENTS— INDICTMENTS.  406 

Which  said  scandalous  and  malicious  words,  in  the  French  lans^uage, 
first  above  mentioned  and  set  forth,  bein;];  translated  iuio  the  English 
language,  were  and  are  of  the  same  signification  and  meaning  as  these 
English  words  following,  that  is  to  say,  "  What  frightful  tempests 
giowl  on  tlie  unchained  waves,  &c. 

And  which  said  scandalous  and  malicious  words  secondly  above 
mentioned  and  sot  forth,  being  translated  into  the  English  language, 
were  and  are  of  the  same  signification  and  meaning  as  these  English 
words  following,  that  is  to  say,  "  Already,"  &c. 

Second  Count — That  the  said  Jean  Peltier  so  being  such  person 
as  aforesaid,  and  unlinvfully  and  maliciously  devising  and  intending 
as  atbresaid,  afterwards,  to  wit,  on  the  26th  of  August,  in  the  forty- 
second  year  of  the  reign  aforesaid,  at  the  parish  of  St.  Anne,  in  the 
liberty  of  Westminster,  in  the  county  of  Middlesex,  unlawfully  and 
maliciously  did  print  and  publish,  and  cause  and  procure  to  be  print- 
ed and  published,  a  certain  other  scandalous  and  malicious 
libel,  containing  therein  among  other  *things,  divers  other     [  '407  ] 
scandalous  and  malicious  matters,  in  the  French  language, 
of  ami  coticerning  the  said  Napoleon  Bonaparte,  in  the  form  of  an  ad- 
dress to  the  French  people,  according  to  the  tenor  following,  that  is 
to  say,  "  Citoyens,"  &c.      Which   said  scandalous  and   malicious 
words, 'in  the  French  language,  last  before  mentioned  and  set  forth, 
being  translated  into  the  English  language,  were  and  are  of  the  same 
signification  and  meaning  as  these  English  words  fullowing,  that  is  to 
to  say,  "  Citizens,"  &c.     To  the  great  scandal,  disgrace,  anddanger 
of  the  said  Napoleon  Bonaparte,  to  the  great  danger  of  creating  dis- 
coid between  our  said  Lord  the  King  and  his  subjects  and  ihe  said 
Napoleon  Bonaparte,  the  French  lle[)ublic,  and  the  citizens  of  the  said 
Republic,  in  contempt  of  our  said  Lord  the  King  and  his  laws,  to  the 
evil  example  of  all  others  in  the  hke  case  offending,  and  against  the 
peace  of  our  said  Lord  the  King,  his  crown,  and  dignity.     Whereup- 
on the  said  Attorney-General  of  our  said  Lord  the  King,  who  lor  oar 
said  Lord  the  King  in  this  behalf  prosecutcth  for  our  said  Lord  the 
Kin^s  prayeth  the  consideration  of  the  court  here  in  the   premises, 
and'that  due  process  of  law  may  be  awarded  against  him  the  said 
Jean  Peltier  in  this  behalf,  to  make  him  answer  to  our  said  Lord  the 
King  touching  and  concerning  the  premises  aforesaid  (a). 


19.  Indictment  for  uttering  Seditious  Words. 

That  A   B.  late  of,  &c.,  labourer,  being  a  wicked,  seditious,  and 
evil-disposed  person,  and  greatly  disaffected  to  our  said  Lord  the 
(a)  The  information  contained  three  other  counts. 

Vol.  II.  97 


407  APPENDIX. 

King,  are  contriving  and  intending  the  liege  sulij'^cts  of  our  said 
Loid  the  King  to  incite  and  move  to  hatred  and  dislike  of  the  ]  er- 
Eon  of  our  said  Lord  the  King,  and  of  the  government  eslahlislied 
•within  this  realm,  on,  &c.,  with  force  and  arms,  at,  kc,  in  the  pre- 
sence and  hearing  of  divers  liege  subjects  of  our  said  Lord  the  King, 

maliciously,  unlawfully,  Aviekedly,  and  seditiously  did 
[  *408  ]     juhl'sh,  utter,  end  declare  wiih  a  loud  voice,  of  and 

concerning  our  said  Lord  the  Kinji.  these  words  follow- 
ing, that  is  to  sav,  "  His  Majesty,  George  the  Third,  (meaning  our 
said  Lord  the  King,)  is  **"'*,  thank  God  for  it ;  I^  (meaning  the 
said  A.  B.)  hope  he  (meaning  our  said  Lord  the  King,)  will  s-ooa 
be  no  more ;  damnation  t3  all  royalists,"  to  the  great  scandal  of 
our  said  Lord  the  King,  in  contempt  of  our  said  Lord  the  King  and 
his  laws,  to  the  evil  and  pernicious  example  of  all  others  in  the  hke 
case  offending,  and  against  the  peace,  &c. 

Second  Count. — And  the  jurors,  aforesaid,  &c.  That  the  said 
A.  B.  being  such  wicked,  seditious,  and  evil  disposed  person  as 
aforesaid,  and  greatly  disaffected  to  our  said  Lord  the  King,  and 
contriving  and  intending  the  liege  subjects  of  said  Lord  the  Kir)g 
to  incite  and  move  to  hatred  and  dislike  of  the  person  of  our  said 
Lord  the  King,  and  the  government  established  within  this  realm, 
on,  &c.,  with  force  and  arms,  at,  &c.  unlawfully,  wickedly,  malic- 
iously, and  seditiously,  in  the  presence  and  hearing  of  divers  liege 
subjects,  of  our  said  Lord  the  King,  again  did  publish,  utter,  and 
declare  of  and  concerning  our  said  Lord  the  King,  and  his  good, 
true,  and  faithful  subjects,  these  words  following,  that  is  to  say,  "  I 
(meaning  the  said  A.  B.)  hope  King  George  the  Third  (meaning 
our  said  Lord  the  King,)  will  soon  be  no  more ;  damnation  to  all 
loyalists."     (^Conclusion  as  before.} 


20.  Information  for    Writing  and  Puhlisliing  a  Libel  against  the 
King  and  G-overnment. 

That  I.  H.,  late  of  London,  clerk,  being  a  wicked,  malicious, 
seditious  and  ill-disposed  person,  and  being  greatly  disaffected  to 
our  said  Lord  the  King,  and  to  his  administration  of  the  government 
of  this  kingdom,  and  the  dominions  thereunto  belonging,  and  wick- 
edly, maliciously,  and  seditiously  contriving,  devising,  and  intending 
to  stir  up  and  excite  discontent  and  sedition  among  his  ^Majesty's 

subjects,  and  to  alienate  and  withdraw  the  affection, 
[  *409  ]     fidelity,  and  allegiance  of  his  Majesty's  "subjects  from 

his  said  Majesty,  and  to  insinuate,  and'  cause  it  to  be  be- 
lieved, that  divers  of  his  said  Majesty's  innocent  and  deserving  sub- 


PRECEDENTS— INDICTMENTS.  409 

jeots  had  been  inhumanly  murdered  by  his  said  Majesty's  troops  in 
the  province,  colony,  or  plantation  of  the  Massachusetts  Bay,  in 
New  England,  in  America,  belonging  to  the  crown  of  Great  Britain, 
ami  unlawfully  and  wickedly  to  sedace  and  encourage  his  Majesty's 
suhjects  in  the  said  province,  colony,  or  plantation,  to  resist  and  op- 
pose his  said  Majesty's  government,  on,  &c.,  with  (c)  force  and 
arms,  at  (d!),  &c.,  wickedly,  maliciously  (e)  and  seditiously  did 
write  and  publish  (/),  and  cause  and  procure  to  be  written  and 
published,  a  certain  false  (f/),  wicked,  malicious,  scandalous,  and 
seditious  libel  (A),  of  and  concerning  his  said  Majesty's  government, 
and  the  employment  of  his  troops,  according  to  the  tenor  and  effect 
(?)  fulh'wing : 

"King's  Arms-Tavern,  Cornhill,  June  7, 1775. 
"  At  a  special  meeting  this  day  of  several  members  of  the  Con- 
stitutional Society,  during  an  adjournment,  a  gentleman  proposed, 
that  a  subscription  should  be  immediately  entered  into  by  such  of 
the  members  present  who  might  approve  the  purpose,  for  raising  the 
sum  of  one  hundred  pounds,  to  bs  applied  to  the  relief  of  the  wi- 
dows,  orphans,  and  aged  parents  of  our  beloved  American  fellow- 
subjects,  who,  faithful  to  the  character  of  Englishmen,  preferring 
death  to  slavery,  were,  fjr  that  reason  only,  inhumanly  murdered  by 
the  King's  (meaning  his  Mfijesty's)  (/c)  troops  at  Lexington  and 
Concord,  in  the  province  of  Massachusetts,  (meaning  the  said  pro- 
vince, colony,  or  plantation  of  the  Massachusetts  Bay,  in  New-Eng- 
land, in  America,)  on  the  Vmeteenth  of  last  April ; 
which  sum  beinsji;  immediately  collected,  it  was  thereupon  [  '410  ] 
resolved,  that  Mr.  H.  (meaning  himself  the  said  I.  H.) 
do  pay  tomorrow  into  the  hands  of  Messrs.  B.  and  C.  on  account 
of  Dr.  F.  the  said  sum  of  one  hundred  pound.-; ;  and  that  Dr.  F.  bo 
requested  to  apply  the  same  to  the  above  mentioned  purpose. 

I.  H.'* 
(Meaning  himself  the  said  I.  H.)     In  contempt  of  our  said  Lord 
the  King"^  in  open  violation  of  the  laws  of  this  kingdom,  and  against 
the  peace,  &c. 

Second  (7oMn«.— That  the  said  I.  H.  being  such  person  as  afore- 
said, and  again  unlawfully,  wickedly,  maliciously,  and  seditiously 

(c>  This  allegation  is  unnecessary,  see  7  T.  R.  4. 
{(I)  As  to  the  venue,  see  vol.  II.  p.  o02. 

(e)  As  to  this  averment,  see  vol.  11.  p.  303.     Sty.  392.     1  Vln.  Ab.  33. 
(/)  Supra  vol.  I.  p.  358.     Baldwin  v.  Elphinsione,  HI.  R.  1037. 
{g)  Tins  allegation  need   not   be   proved,  see   7  T.  R.  4,  and  supra  vol.  II. 
p.    03.  _ 

(/j)  See  vol.  I.  p.  358.  (0  See  vol.  I.  p.  3G4. 

(k)  As  to  the  nature  and  use  of  an  innuendo,  see  vol.  I,  p.  418. 


410  APPENDIX. 

devising,  contriving,  and  intending  as  aforesairl.  to  wit,  on,  &c.,  with 
force  and  arras,  at,  &c.  wickerllv,  maliciously,  and  seditiously  print- 
ed and  published,  and  caused  and  procured  to  be  printed  and  pub- 
lished, in  a  certain  newspaper,  entitled,  "  The  Morning  Chronicle 
and  London  Adveniser,''  a  certain  other  fjxlse,  wicke^l,  scandalous, 
malicious,  and  seditious  libeb,  of  and  concerning  his  said  Majesty's 
government  and  the  employment  of  his  troops,  according  to  the  tenor 
and  effect  following,  that  is  to  say,  (setting  out  the  libel  as  before.) 

T}iird  and  Fourth  Counts. — For  publishing  the  same  in  other 
newsspapers. 

Fifth  Count. — Wickedly,  maliciously,  and  seditiously  did  print 
and  f  ublish,  and  cause  and  procure  to  be  printed  and  published,  a 
certain  other  false,  wicked,  malicious,  scandalous,  and  seditious 
libel,  of  and  concerning  his  said  Majesty's  government  and  the 
employment  of  his  troof  s,  according  to  the  tenor  and  effect  follow- 
ing, that  is  to  say,  (as  before.) 

Sixth  Count. — For  printing  and  publishing  the  former  part  of  the 
libel. 

/Seventh  Count. — And  the  said  Attorney-General  of  our  said  Lord 
the  King  for  our  said  Lord  the  King  further  gives  the  court;  here  to 
understand  and  be  informed,  that  the  said  I.  H.  being  such  person  as 
aforesaid,  and  again  unlawfully,  wickedly,  maliciously,  and  S'jditiously 
contriving,  devising  and  intending  as  aforesaid,  afterwards, 
[  *411  ]    to  wit,  on,  &c.  *with  force  and  arms,  at,  &c.,  wickedly,  ma- 
liciously, and  seditiously,  did  write  and  publish,  and  cause 
and  procure  to  be  written  and  published,  a  certain  false,  wicked,  scan- 
dalous, malicious,  and  seditious  libel,  of  and  concerning  his  said  Ma- 
jesty's government   and   the  employment  of  his  troops,  according  to 
the  tenor   and  effect  following: — '  I  (meaning  himself  the  said   I. 
H.)  think  it  proper  to  give  the  unknown  contributor  this  notice,  that 
I  (again  m.eanirig  him.self  the   said  I.  IL)    did  yesterday   pay   to 
Messrs.  B,  and  C.  on  the  account  of  Dr.  F.  the  sum  of  6fty  pounds, 
and  that  I  (again  meaning  himself  the  said  I.  H.)  Avill  write  to  Dr. 
F.  requesting  him   to   apply   the   same  to  the  relief  of  the  widows, 
orphans,  and  aged  parents  of  our  beloved  American  felbw-subjects, 
who,vfaithful  to  the  character  of  Englishmen,  preferring  death  to 
slavery,  were,  for  that  reason  only,  inhumanly  murdered  by  the 
king's  (meaning  his  said  Majesty's)  troops,  at  or  near  Lexington 
and   Concord,  in  the  province  of  Massachusetts,  (meaning  the  said 
province,  colony,  or  plantation  of  the  Massachusetts  Bay,  in  New- 
England,  in  America,)  on  the  nineteenth  of  last  April.  L  H." 
(Again  meaning  himself  the  said  I.  H.) — (Conclusion  as  before) (Q. 

(I)  The  original,  see  Cowp.  683,  contains  other  counts  stating  the  printing 


PRECEDENTS— INDICTMENTS.  411 


21.     Indictment  for    Writing   and  Delivering  a   Challenge  at  the 
instance  of  a  third  Person. 

That  A.  B.,  late  of,  &c.,  Esq.,  on,  &c.  at,  &c.,  being  of  a  tur- 
bulent, wicked,  and  malicious  disposition,  and  intendiuij;  to  procure 
great  bodily  harm  and  mischief  to  be  done   to  C.  D.,  late  of,  &ic., 
in  the  county  aforesaid,  Enquire,  and  also  intending,  as  much  as  in 
hira  the  said  A.  B.  lay,  to  incite  and  provoke  the  said  C. 
D,  unlawfully  to  fight  a  duel  with   and   against  one  *E.      [  *412  ] 
F.  late  of  the  same  place.  Enquire,  on   the   said   second 
day  of  December,  in  the  year  aforesaid,  with  force  and  arms,  at  B. 
aforesaid,  in  the  county  aforesaid,  did  unlawfully,  wickedly,  and 
maliciously  write,  and  cause  to  be  written,  a  certain  paperwriiing, 
in  the  words,  letters,  and  figures  following,  to  wir.     "  To  C,  D.,  Es- 
quire, at  B.  (meaning  the  said  C.  D.)  by  the  desire  of  Mr.  E.  F. 
(meaning  the  said  E.  F.)  I  (meaning  himself  the  said  A.  B.)  wait 
on  you  (meaning  the  said  C.  D.)  to  inform  you  (meaning  the  said  C. 
D.)  that  he  (meaning  the  said  E.  F.)  expects  such  satisfacti)n  as 
one  gentleman  should  require  from  another,  for  an  insult  bestowed 
on  him  ;  your    (meaning   the    said  C.  D.'s)   conduct  merits  every 
treatment  a   scoundrel   deserves.     Manner,  time,  and  place  left  to 
you  (meaning  the  said   C.    D.)     A.  B.    Dec.  2."     (Meaning  and 
intending  by  the  said   paper  writing  a  challenge  to  the  said  C.  D.  to 
fight  a  duel  with  and  against  the  said  E.  F.)  which  said  paper-wri- 
ting (meaning  and  intending  the  same  as  such  challenge  as  af)re- 
said,)  he  the  said  A.  B.   afterwards,  to  wit,  on  the  sirae  day  and 
year  aforesaid,  at  B.  aforesaid,  in  the   county  aforesaid,  unlawfully, 
wickedly,  and  maliciously  did  deliver,  and  cause  to  be  delivered,  to 
the  said  CD.  against  the  peace,  &c. 

Second  Count — -for  delivering  a  written  Challenge  as  from,  and  on 
the  part,  and  bg  the  desire  of  E.  F. 
That  the  said  A.  B.  being  such  evil  disposed  person  and  dis- 
turber of  the  peace  of  our  said  Lord  the  King,  as  aforesaid,  and  in- 
tending to  procure  great  bo  lily  harm  and  mischief  to  be  done  to  the 
said  C.  D-,  and  to  incite  and  provoke  him  the  said  C.  D.  unlawfully 
to  fight  a  duel  with  and  against  the  said  E.  F.,  afterwards,  to  wit, 
on  the  same  day  and  year  aforesaid,  with  force  and  arms,  at  B., 
aforesaid,  in  the  county  afjresaid,  did  unlawfully,  wickedly,  and 
maliciously  deliver,  and  cause  to  be  dehvered,  a  certain  written 
challenge,  as  from,  and  on  the  part,  and  by  the  desire  of  the  said 
E.  F.,  to  the  said  C.  D.  unlawfully  to  fight  a  duel  with  and  against 

and  publishing  of  the  latter  libel  in  different  newspapers,  and  also  the  publishing 
of  both  on  different  days. 


413  APPENDIX. 

the  said  E.  F.,  which  said  last-mentioned  challensre  is 
[  •413  ]     *as  follows,  that  is  to  say,  (^set  oat  the  chullen;je,)  agiinst 

the  peace  of  our  said  Ljrd  the  King,  his  crown  and 
dignity. 

Tliird  Count — for  provoking  and  inciting  the  Prosecutor  to  Fight. 

That  the  said  A.  B,  being  such  evil-disposed  person,  and  dis- 
turber of  the  peace  of  our  said  Lord  the  King,  as  aforesaid,  and  in- 
tending to  procure  great  bodily  harm  and  mischief  to  be  done  to  the 
said  C.  D.  and  to  incite  and  provoke  him  the  said  CD.  unlawfully 
to  fight  a  duel  with  and  against  the  said  E.  F.  afterwards,  to  wit,  on 
the  same  day  and  year  aforesaid,  with  force  and  arms,  at  B.,  afore- 
said, in  the  county  aforesaid,  did  unlawfully,  wickedly,  and  mali- 
ciously provoke  and  incite  the  said  C.  D.  (in  the  peace  of  God  and 
our  said  Lord  the  King  then  and  there  being,)  unlawfully  to  fight 
a  duel  with  and  against  the  said  E.  F.,  against  the  peace,  &:c. 


22.  Information  for  Challenging  and  Posting. 

That  A.  B.,  late  of,  &c.  Esquire,  being  a  person  of  a  turbulent, 
wicked,  and  malicious  disposition,  and  not  having  the  fear  of  G.)d 
before  his  eyes,  but  being  moved  and  seduced  by  theinsiigation  of 
the  devil,  and  wickedly  and  maliciously  intending,  as  much  as  in  him 
lay,  not  only  to  teiriiy  and  affright  one  C.  a  good  and  peaceable 
suliject  of  our  said  Lord  the  King,  but  also  to  kill  and  muider  him, 
heietofore,  to  wit,  on,  &c.  with  force  and  arms,  at,  &c.  unlawfully 
and  wickedly  did  provoke  and  challenge  the  said  C.  to  fight  a  duel 
against  him  the  said  A.  B.   with  sword  and  pistol  ;  and  the  said 

of  our  said  Lord  the  King,  giveth  the  Court  here  further  to 

understand  and  be  informed,  that  the  said  C.  having  then  and  there 
refused  to  fight  with  the  said  A.  B.  in  pursuance  of  such  wicked 
and  unlawful  challenge  last  aforcsnid,  he  the  said  A.  B. 
[  *-114  ]  for  the  *con.pleting  his  aforesaid  evil  and  wicked  fiurpose 
and  design,  and  further  to  provoke  and  incite  the  said  C. 
to  fight  a  duel  against  him  the  said  A.  B.  in  the  manner  aforesaid, 
afterwards,  to  wit,  on  the  same  day  and  year  aforesaid,  at  C. 
aforesaid,  in  the  county  aforesaid,  did  wickedly  and  maliciously 
place,  stick  up,  and  upon,  and  caused  to  be  placed,  stuck  up,  an  I 
exposed  to  public  view,  to  wit,  on  the  market-house  in  C.  aforesaid, 
a  certain  paper  writing,  with  the  name  of  him  the  said  A.  B. 
thereunto  subscribed,  containing  certain  scurrilous  and  abusive 
matter  against  the  said  C.  of  the  tenor  following,  that  is  to  say,  "  Hav- 
ing received  (meaning  thereby  that  ths  said  A.  B.  had  received,)  a 


PRECEDENTS— INDICTMENTS.  414 

most  un gentlemanlike  aifront  frora  C.  II.  esquire,  meaning  the  said 
C.)  I  (uuaning  himstlf  the  said  A.  B.)  disiinguish  him  (meaning 

the  said  C)  thus,  that  none  may  doubt  the  individual  man  of , 

ill  the  county  of  IM.  he  (again  meaning  the  said  C.)  having  in  th3 
mo.^t  cowardly  manner  refased  to  give  me  (meaning  himself  the 
said  A.  B.)  the  saiisfaetion  due  to  a  gentleman,  I,  (meaning  himself 
the  said  A.  B.)  here  in  the  sight  and  for  the  information  of  his 
countryman,  post  him,  (meaning  the  said  C.)  and  declare  him  (again 
meaning  the  said  C)  to  be  a  dirty,  cowardly,  insolent  fool,  as  sui'h, 
I  (meaning  himself  the  said  A.  B.)  will  ever  treat  him,  (meaning  ihe 
said  C  )  A.  B.  of  B.  in  the  county  of  M."  to  die  great  damage 
and  terror  of  him,  the  said  C.  H.  and  against  the  peace  of  our  said  Lo.d 
the  King,  his  crown  and  dignity. 


23.  Indictment  for  Drawing  in  Effigy  the  Collectors  of  the  Assessed 
Taxes,  in  pursuance  of  a   Compiracy. 

That  A.  B.  late  of  &c.  labourer,  C.  D.  late  of  the  same  place, 
labourer,  &c.  being  respectively  persons  of  evil,  envious,  and  wicked 
minds,  and  of  most  malicious  dispositions,  and  malicious- 
ly and  unlawfully  deviling  *and  "intending  to  injure  and     [  *415  ] 
aggiieve  one  E.  F.  gentleman,  then  and  there  being  an 
officer  and  person  engaged  and  employed  in  certain  busmess  relating  to 
the  revenue  of  our  said'Lord  the  King,  to  wit,  an  inspector  of  the  du- 
ties on  horses  and  windows,  and  all  other  duiies  under  the  management 
of  the  commissioners  for  managing  his  Majesty's  affairs  of  taxes,  by 
several  acts  granted  to  his  Majesty,  and  G  II.  then  and  there  being 
an  officer  and  person  engaged  and  employed  in  certain  business  relat- 
ing to  the  revenue  of  our  said  Lord  the  King,  to  wit,  an  officer  for 
the  survey  and  inspection  of  the  several  and  respective  rates  and 
duties  upon  horses,  windows,  and  lights,  and  upon  inhabited  houses, 
and  upon  male  servants,  caniages,  horses,  mules,  and  dogs,  by  cer- 
tain acts  of  parliament  granted  to  his  Majesty,  and  for  viewing  and 
numbering  the  several  lights  or  windows  in  each  house,_  and  inspect- 
ing and  examining  the  assessment  or  certificate  thereof,  made  or  to 
be°made  according  to  the   direction  of  certain  acts  of  parliament, 
and  for  doing  all  other  matters  by  the  statutes  in  such  case  made 
and  provided,  requisite  to  be  done  by  an  officer  of  that  nature,  in 
the  county  of ,  being  respectively   good,  peaceable,  and  well- 
disposed  subjects  of  our  said  Lord  the  King,  and  to  bring  them  into 
greac  contempt,  infamy,  hatred,   and  disgrace,  on,  &c,  with  force 
and  arms,  at,  &c.  unlawfully  and  maliciously  did  conspire,  combine, 
confederate,  and  agree  among  themselves,  and  together  with  divers 
other  evil  disposed  persons,  whose  names  are  unknown  to  the  jaror« 


415  APPENDIX. 

aforesaid,  to  traduce,  defame  vilify,  and  bring  into  public  hatred, 
ridicule,  and  contempt,  the  said  E.  F.  and  G.  H.  as  such  officers  a3 
aforesaid,  and  to  make,  and  cause  to  be  made,  a  great  noise,  riot, 
rout,  tumult,  and  disturbance,  at,  &c.  ;  and  that  the  said  A  B,  &c. 
in  pursuance  of  and  according  to  the  conspiracy,  combination,  con- 
federacy, and  agreement  as  afore^^aid  before  had,  afterwards,  to  wit, 
on,  &.C.  \\ith  force  and  arms,  at,  &c.  unlawfully  and  maliciously  did 
put  and  place,  and  cause  and  procure  to  be  put  and  placed,  two 
figures  or  effigies,  the  said  effigies  or  figures  being  intended  to  rep- 
resent the  said  E.  F.  and  G.  II.  in  a  certain  cart ;  and 
[  *416  ]  then  and  there  unlawfully  did  *by  and  with  a  certain 
horse,  draw,  and  cause  to  be  drawn,  the  said  cart  wiih 
the  said  effigies  so  put  and  placed  therein,  and  exposed  to  public 
sight  and  view,  in,  through,  and  along  divers  public  streets  and  com- 
mun  highways  there,  and  also  before  and  near  the  dwelling-house  of 
the  said  E.  F.  and  dwelling-houses  of  divers  liege  subjects  of  our 
said  lord  the  king  there  situate,  and  in  the  presence,  sight,  and 
view  of  divers  liege  subjects  of  our  said  lord  the  kmg,  in  the  man- 
ner in  which  criminals  are  usually  conveyed  to  the  place  of  execu- 
tion ;  and  did  then  and  there,  during  all  that  time,  toll,  and  cause 
to  be  tolled,  a  certain  large  bell  of  and  belonging  to  a  certain  church 

at ,  and  made   and  caused  to  be  made  a  great  noise,  riot, 

rout,  and  tumult,  and  disturbance  and  utter  and  cause  to  be  uttered 
divers  malicious  and  opprobrious  words  and  speeches,  defaming  and 
vilit'_ying  the  said  E.  F.  &c.  and  among  others  the  opprobrious 
•words  and  speeches  following,  that  is  to  say,  "  Damn  the  dog  taxers, 
(meaning,  &e.)  damn  the  window  peepers  (meaning,  &c.)  ;"  and 
beat  anu  eause  to  be  beaten  the  h<  ads  and  faces  and  other  parts  of 
the  said  effigies  and  figures,  and  did  afterwards,  to  wit,  on,  dice,  at, 
&.C.  cast  ana  throw  the  said  effii^ies  or  fiijures  into  a  certain  river  or 
stream  of  water,  to  denote  and  represent  the  death  and  drowning  of 
them  the  said,  &c.  and  did  then  and  there,  imaiediately  after  such 
casting  and  throwing,  ring,  and  cause  to  be  rung,  divers  bells  in  and 
belongnig  to  a  certain  church  at,  &c.  in  the  manner  in  which  the 
said  bells  were  used  to  be  rung  on  joyful  occasions  ;  and  did  after- 
wards, to  wit,  on,  &c.  at,  &c.  compose,  write,  and  publish,  and  cause 
and  procure  to  be  composed,  wiitten,  and  published,  a  certain  ma- 
licious and  scandalous  libel,  containing,  amongst  other  things  therein, 
divers  scandalous  and  malicious  matters  and  things,  of  and  concern- 
ing the  said,  &c.  to  the  tenor  and  effect  following,  that  is  to  say, 
**•  These  two  unfortunate  malefactors  (meaning,  &c.  were  drawn  to 
the  place  of  execution,  attended  by  that  able  priest,  J.  W.;  on 
their  arrival,  E.  F-  (meaning,  &c.)  stood  up,  and  with  uplifted 
hands  addressed  the  spectators  as  follows, — '  Fellow  mor- 
£  *417  ]  tals,  you  have  now  presented  to  *your  view,  one  of  the 
most  unfortunate  of  men,  (meaning,  &.c.)  whose  villainy 


PRECEDENTS— INDICTMENTS.  417 

has  brought  him  to  the  most  detestable  of  all  deaths!  I 
(meaning,  &c.)  have  been  the  bane  of  social  comfort  to  many  :  you 
now  see  the  consequences  of  incorrigible  roguery  ;  I  (meaning,  &c.) 
have  rid  numbers  of  the  golden  dropsy  which  subsists  near  the 
purse,  in  order  to  add  to  my  own  disease,  which  will  soon  terminate 
my  existence.  To  what  dark  abyss  am  I  hastening !  to  unknown 
regions  and  pains  yet  unfelt  by  me  !  Ah  !  too  late  do  I  repent ; 
the  time  is  come  ;  I  must  answer  to  the  call  of  justice  ;  had  I  been 
just  and  true,  half  honest  would  have  served  me.  I  claim  forgive- 
ness of  you,  though  I  have  wronged  you  all  alike,  with  this  my  vilo 
associate,  (meaning,  &c.)  partner  of  my  villainies, — sharer  of  my 
gains  ;  words  are  wanting  to  convince  you  how  my  conscience  goads 
me  ;  Heaven  has  now  poured  down  curses  on  my  head.'  N.  B. 
This  speech  was  answered  by  some  pretty  loud  huzzas.  The  other 
miscreant  (meaning,  &c.)  then  stood  up,  and  with  most  beasily 
howl  thus  addressed  the  delighted  spectators, — '  Ungrateful  wretciies 
you  now  behold  a  man  (meaning,  &c.)  in  the  face  of  death,  whose 
courage  dares  to  call  you  by  your  proper  titles.  You  say,  I  am  of 
notorious  ploughshare  and  buckle  memory.  Yes,  I  am  (meaning, 
&c.)  ;  my  conduct  as  such  commanded  your  esteem  ;  I  (meaning, 
&c.)  took  but;  20s.  and  gave  you  two  ;  but  I  am  now  foiled  in  my 
attempt  to  strip  you  of  all  within  your  shallow  purses.  With  an 
eternal  chaos  before  my  eyes,  I  tell  you,  we  (meaning,  &c.)  have 
shared  .£1500  ;  this  I  say,  to  gripe  your  empty  pockets.  Had  we 
(meaning,  &c.)  lived,  your  persons  should  have  been  in  pawn  to 
glut  our  empty  coffers.  Now  farewell,  we  shall  meet  anon,  to  com- 
pliment each  other  on  our  rogueries.  I  (meaning,  &c.)  bid  you  all 
farewell.'  This  hardened  villain's  (meaning  the  said,  &c.)  speech 
was  answered  by  much  hissing  and  clapping  of  hands.  They 
(meaning,  &c.)  were  then  drowned,  drawn,  quartered,  and  dissect- 
ed ;  the  joyful  ceremony  was  finished  by  bell  ringing,  and  the  sud- 
den transition  of  every  one's  countenance  from  that  of  a  melancholy 
to  a  joyful  aspect.  Jemmy  the  priest,  endeavoured  to 
convert  them  by  *sundry  hard  blows  and  divers  bruises.  [  *-il8  ] 
Long  live  the  king." — To  the  great  scandal,  infamy, 
and  damage  of  the  said,  &c.  to  the  evil  example  of  all  others,  and 
against  the  peace  of  our  said  lord  the  king,  his  crown  and  dignity. 

2nd  Count. — And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that  the  said,  &c.  being  respectively  such  per- 
sons as  aforesaid,  and  maliciously  and  unlawfully  devising  and  in- 
tending to  injure  and  aggrieve  the  said,  &c.  then  and  there  being 
respectively  good,  peaceable,  and  well-disposed  subjects  of  our  said 
Lord  the  King,  and  to  bring  them  into  great  contempt,  infamy, 
hatred,  and  disgrace  on,  &;c.  with  force  and  arms,  at,  &c.  unlavv- 

VoL.  IL  98 


418  APPE^^)IX. 

fully  and  maliciously  did  conspire,  combine,  confederate,  and  agree 
among  themselves,  and  vrith  divers  other  evildi>pose(i  pers  >n3  whose 
names  are  unknown  to  the  jurors  aforesai'l,  to  traduce,  defame,  vil- 
ify, and  bring  into  public  hatred,  ridicule,  and  con'empt,  the  said, 
&c.  and  the  tharacters  and  conduct  of  them  the  said,  &c.  respect- 
ively, and  to  make,  and  cause  to  be  made,  a  great  noise,  riot,  ruut, 
tumult,  and  disturbance,  at,  kc.  aforesaid  ;  and  that  the  said  C.  D. 
kc.  in  pursuance  of  and  according  to  the  said  conspiracy,  combi- 
nation, confederacy,  and  a^^reement.  so  as  aforesaid  had,  afterwards, 
to  wit,  on,  &c.  with  force  and  arms,  at,  &c.  aforesaid,  unlawfully 
and  maliciously  did  put  and  place,  and  cause  and  procure  to  be  put 
and  placed,  &c.  {as  in  first  count.) 

2id  Count. — Intending  to  injure  the  said,  &c.  as  such  officers,  as 
aforesaid,  kc.  and  to  make,  and  cause  to  be  made,  a  great  noise, 
&c.  {as  before  in  first  count.)  unlawfully  and  maliciously  did  put 
and  place,  &c.  {as  in  the  first  count,  but  more  generally,  and  omit- 
ting all  the  opprobrious  tvords,  except  damn  the  dog  taxers  and 
window  peepers.) 

Ath  Count. — Same  as  third,  except  in  the  description  of  E.  F. 
&c.  as  officers. 


•23.  Indictment  for  a  Libel  on  an  Individual. 

That  C.  D.  late  of ,  being  a  person  of  an    envious,  evil, 

and  wicked  mind,  and  of  a  most  malicious  disposition, 
[  *419  ]  and  wickedly,  maliciously,  and  unlawfully  minding,  con- 
triving and  intending,  as  much  as  in  him  lay,  to  i.ijure, 
oppress,  aggrieve,  and  vilify  the  good  name,  fame,  credit,  and  re- 
putation of  A.  B.  a  good,  peaceable,  and  worthy  subject  of  our  sail 
Lord  the  King,  and  to  brinij  him  into  public  scandal,  hatred,  infamy, 
and  disgrace,  {or  into  public  scandal,  contempt,  ridicule,  and  dis- 
grace, &c.  according  to  the  nature  of  the  libel,)  with  force  and 
arm?,  on,  &c.  at,  kc.  of  his  great  hatred,  malice,  and  ill-will  to- 
wards the  said  A.  B.  wickedly,  maliciously,  and  unlawfully,  did  com- 
pose and  write,  and  cause  and  procure  to  be  composed  and  written, 
a  certain  false,  scandalous,  malicious,  and  defamatory  libel,  of  and 
concerning  the  said  A.  B.  containing  the  false,  scandalous,  mali- 
cious, and  defamatory  words  and  matter  following,  of  andconcernino' 
the  said  A.  B.,  that  is  to  say,  {set  out  a  copy,  with  proper  innuendoes 
to  explain  the  meaning,  if  they  be  necessary,)  which  said  scandalous, 
malicious,  and  defamatory  libel,  he  the  said  C.  D.  afterwards,  to  wit, 


PRECEDENTS—INDICTMENTS.  419 

on,  &c.  at,  &c.  -svickedly,  maliciously,  an*!  unlawfully  did  send  (a) 
and  cause  to  be  sent  to  one  E.  F.  in  the  form  of  a  letter,  directed  to 
the  said  E.  F.  and  did  thereby  then  and  there  unlawfully,  wickedly, 
and  maliciously  publish,  and  cause  to  be  published,  the  said  libel,  to 
the  great  damage,  disgrace,  scandal,  and  iufamy  of  the  said  A.  B. 
and  against  the  peace,  &c. 

2nd  Count. — That  the  said  C.  D.  being  such  envious,  evil,  wick- 
ed, and  malicious  person,  and  wickedly,  maliciously,  and  unlawfully 
minding,  contriving,  and  intending,  as  aforesaid,  to  wit, 
on  the  same  day  *and  year  aforesaid,  with  force  and     [  *420  ] 
arms,  at,  &c.  of  his  great  hatred,  malice,  and  ill-will  to- 
"wards  the  said  A.  B.   wickedly,  maliciously,  and   unlawfully   did 
write  (or  print)  and  publish,  and  cause   and  procure  to  be  written 
(or  printed)  and  published  a  certain  other  false,  scandalous,  mali- 
cious, and  defamatory  libel,  of  and  concerning  the  said  A.  B.  con- 
taining the  false,  scandalous,  malicious,  and  defamatory  words  and 
matter  following,  of  and  concerning  the  said  A.  B.  that  is  to  say, 
(^set  out  the  libel  and  conclude  as  before.^ 
^rd  Count. — For  publishing  generally. 


24.  Indictment  for  exposing  to  Sale  and  Public   View  an  obscene 

print  (5). 

That  A.  B.  late  of,  &c.  being  a  scandalous  and  evil  disposed  per- 
son, and  not  having  the  fear  of  God  in  his  heart,  but  devising,  con- 
triving, and  intending  the  morals  as  well  of  youth  as  of  divers  other 
liege  subjects  of  our  said  Lord  the  King,  to  debauch  and  corrupt, 
and  to  raise  and  create  in  their  minds  inordinate  and  lustful  desires, 
on,  &c.  with  force  and  arms,  at,  &c.  in  a  certain  open  and  public 
shop  of  him  the  said  A.  B.  there  situate,  unlawfully,  wickedly,  ma- 
liciously, and  scandalously,  did  publish,  sell,  and  utter  to  one  C.  D. 
a  liege  subject  of  our  saii  Lord  the  King,  a  certain  lewd,  wicked, 

scandalous,  infamous,  and  obscene   print,  on  paper,  entitled 

,  representing,  &c  Qas  in  the  print,}  and  which  said  lewd, 

(a)  Where  the  libel  merely  reflects  on  a  person  in  his  profession,  trade,  or 
business,  and  the  publication  is  confined  to  that  person,  it  is  not  sufficient  to 
aver  an  intention  to  disparage  and  injure  the  partv  in  his  profession,  trade,  or 
business ;  the  indictment  ought  to  aUeae  an  intent  to  provoke  and  excite  the 
prosecutor  to  a  breach  of  the  peace.  R.  v.  Wegeaer,  1  Starkie's  C.  543  ;  supra 
vol.  II.,  324. 

(6)  As  to  thii  offence,  see  vol.  11.  p.  155. 


420  APPENDIX. 

wicked,  scandalous,  infamous,  and  obscene  print,  on  paper,  was  con- 
tained in  a  certain  printed  pamphlet,  then  and  there  uttered  and 

sold  by  him  the  said  A.  B.  to  the  said  C.  D.  entitled •,  to  the 

manifest  corruption  and  subversion  of  youth,  and  other  liege  subjects 
of  our  said  Lord  the  King,  in  their  manners  and  conversation,  in 
contempt  of  our  said  Lord  the  King  and  his  laws,  and  against  the 
peace,  &c. 

In  a  second  Count,  allege  the  publication  generally,  omitting  that 
it  was  contained  in  any  pamphlet,  &c. 


INDEX. 


A. 

ABILITY : 

charging  the  want  of,  vol.  i.  page  119. 
AB  USE : 

mere  words  of,  not  actionable,  i.  30. 
ACTION : 

for  slander,  grounds  of,  i.  Prel.  Dis.  xrn. 
ADJECTIVE: 

when  words  actionable,  i.  72. 
ADMINISTRATION  OF  JUSTICE  : 

pubUcations  reflecting  on,  ii.  200. 
ADMISSION: 

where  it  supercedes  proof  of  special  character,  u,  10,  11. 
AGGRAVATION: 

evidence  in,  ii.  57. 
AFFIDAVITS  : 

in  case  of  information,  see  information,  ii.  285. 
ALFRED : 

law  of,  Prel.  Dis.  xl. 
ALGERNON  SIDNEY: 

proof  against,  ii.  20. 
AMBASSADOR: 

libel  on,  ii.  216. 
AMBIGUITY: 

different  kinds  of,  i.  46. 
APOTHECARY: 

words  of,  i.  136. 
APPLICATION  OF  WORDS: 
a  question  for  the  jury,  ii.  320. 

ATHENS:  .       ,.    ,  t^-        • 

law  of,  in  respect  of  defamation,  Prel.  Dis.  vii. 

ATTACHMENT  : 

proceeding  by,  when  allowoble,  u.  259.  ^  ••  ocn 

contemptuous  words  spoken  in  presence  of  magistrates,  u.  ^bu. 
by  what  courts  granted,  ii.  261. 
where  an  affidavit,  ii.  262. 


422  INDEX. 

ATTACHMENT: 

how  executed,  ii.  2G5. 

for  contempt  in.4publishing  proceedings  of  cour^  ii.  2G5. 

proceeding  on,  after  arrest  of  party,  ii  2GG. 

exainmatiun  on  interrogatories,  ii.  25G. 
ATTEMPT: 

to  commit  a  crime,  charge  of,  actionable,  i.  33. 
ATTORNEY: 

words  of,  in  his  profession,  i.  12G,  131,  132. 

evidence  of  being,  ii.  2. 

Dot  bonnd  to  prove  taking  out  of  certificate,  ii.  6,  7. 
AUGUSTUS: 

libels  on  the  emperor,  Prel.  Dis.  cv. 
AVERMENT: 

see  Declaration. 

B. 

BARRISTER: 

words  of.  i.  12G,  136. 
BASTARDY : 

words  of,  where  cognizable,  ii.  125. 
BISHOP: 

words  of,  i.  132. 
BLASPHEMY: 

indictment  for,  ii.  130. 

grounds  of,  considering  it  to  be  a  temporal  offence,  ii.  131. 

opinion  of  Michtelis,  ii.  131. 

necessity  for  considering  it  to  be  a  temporal  offence,  ii.  133. 

in  what  the  offence  consists,  ii.  136. 

libels  against  Christianity,  ii.  139. 

limitation  of  the  offence,  ii.  139. 

extent  of  the  offence,  ii.  143. 

malicious  intention  essential  to  the  offence,  ii,  147. 

how  evidenced,  ii.  147. 

legislative  provisions,  ii.  148. 

St.  1  Ed.  6,  c.  1,  ii.  148. 
1  Eliz.  c.  1,  s.  14,  ii.  148. 
1  Eliz.  c.  2,  ii.  148. 
13  Eliz.  c.  12,  ii.  149. 
3  J.  l,c.21,ii.  149. 
9  &  10  W.  3,  c.  32,  ii.  149. 
53  G.  3,  c.  IGO,  s.  2,  ii.  150. 
BLOODSUCKER: 

imputation  of  being  one,  i.  87. 
BOOKSELLER: 

words  of  a,  i.  141. 

liabiUty  of,  ii.  31. 

presumption  of  knowledge  by,  ii.  61. 


INDEX.  425 

BORTHWICK:  ,         „    ,  ^.     ,  •• 

able  defence  of  fhe  law  of  Scotland  by,  Prel.  Dis.  Ivu. 

BOUNDARIES:  .  ^    t,    ,    t.- 

legal,  necessary  that  they  should  be  well  defined,  riei.  JJis. 

XXX. 

BR AC TON: 

law  of  England,  stated  by,  Prel.  Dis.  xl. 

copied  largely  from  the  Listitutes,  ib.  clxv. 
BREWSTER: 

conviction  of,  ii.  162. 
BROWN'S: 

case,  ii.  173. 
BROWNE,  Dr. 

conviction  of,  ii.  163. 
BURDETT: 

Sir  Francis's  case,  ii.  205. 
BURGUNDIANS: 

laws  of,  Prel.  Dis.  viii. 


CANUTE : 

law  of,  Prel.  Dis.  xl. 
CARICATURE  : 

actionable,  i.  172,  3. 

indictable,  i.  173. 
CARPENTER : 

words  of  a,  i.  140. 

CENSOR:  .       r,    i   t^- 

of  the  press,  Dr.  Johnson's  opinion  concermng,  Prel.  Dis.  xcvu. 

CENSORSHIP: 

of  the  public  press,  Prel.  Dis.  xciii. 

whether  expedient,  ib.  cxv. 
CENSURE: 

fear  of  public,  a  salutary  restraint,  Prel.  Dis.  1. 
CHALLENGE: 

to  fight,  indictment  for,  ii.  208. 

to  fight,  on  account  of  money  won  at  play,  u.  209. 

CHARACTER;  .      -n    i  t^- 

how  connected  with  temporal  benefits,  Prel.  JJis.  xvi. 

Genehal; 

foundation  of,  Prel.  Dis.  xviii.  ,      .     .  ,       t,    ,  -n-o 

good,  but  presumptive  evidence  of  good  principles,  Prel.  Uis. 

xix. 
effect  of  slight  suspicion  as  to,  ib.  xix, 

right  of  every  man  to,  ib.  xxii.  i,t     •  +      «♦- 

communication  concerning,  essential  to  the  public  inieresis 
ib.  xlviii. 
evidence  of  innocence,  ib.  lii. 


424  INDEX. 

General. 

words  cease  to  be  so,  if  communications  concerning  character, 

were  to  be  prohibited,  ib.  hi. 
Special : 

words  affecting,  when  actionable,  i.  117. 

of  servant,  the  giving,  when  a  defence,  i.  295. 

proof  of  apphcation  of,  words  to,  ii.  52. 

evidence  by  servant  for  giving  false  character,  ii.  58. 

of  plaintiff,  when  admissible  in  evidence,  ii.  GO. 

of  plaintiff  in  action  for  mahcious  prosecution,  when  admis- 
sible, ii.  81. 

of  plaintiff  in  action  for  slander,  where  impeachable,  ii.  88. 

general  evidence,  admissible,  ii.  88. 

evidence  of  particular  facts,  not  admissible,  ii.  90. 
CHEATING : 

imputation  of,  i.  87, 
CHRICHLEY: 

prosecution  of,  ii.  212. 
CIVIL  REMEDY: 

grounds  of  action,  i.  1. 

falsity  essential,  i.  7. 

injurious  consequence  essential,  i.  9. 

damage  may  be  either  in  law,  or  fact,  i.  10. 
CLARKE : 

conviction  of,  ii,  188, 
CLERGYMAN  : 

words  of,  ii.  126. 
CLirPlNG  OF  MONEY : 

charge  of,  when  actionable,  i.  93,  94. 
COBBETT,  WM.  : 

conviction  of,  ii.  191. 
COKE,  LORD  : 

his  notions  of  the  perfection  of  the  law  of  England,  Prel.  Dis. 
clxii. 
COLLECTION  OF   LIBELS: 

whether  indictable,  ii.  229,  230. 
COLLOQUIUM: 

see  declaration,  i.  383. 

proof  of,  ii.  51. 
COMMON  FAME: 

formerly  a  ground  for  putting  a  man  on  hia  trial,  Pxel.  Dis.  xv. 
COMMON  LAW: 

system  of  observations  on,  Prel.  Dis.  clxi. 
COMMUNICATION : 

abuse  of  faculties  of,  Prel.  Dis.  iii. 

by  means  of  the  press,  ib.  iv. 

necessity  for  laws  to  restrain,  ib.  vi. 

such  restraints  common  to  all  laws,  ib.  vi, 

distinction  as  to  mode  of,  by  the  law  of  England,  ib.  Ixxii. 


INDEX.  425 

COMMUNICATION.  . 

particular  mode  of,  not  essential  to  title  to  damages,  ib.  Ixix. 
distinction  as  to  the  mode  of,  by  the  civil  law  ib.  Ixx. 
what  essential  to,  penal  liability,  ib.  cxxxv. 
on  grounds  of  public  policy,  ib.  cxxxvi. 

ground  of  distinction  between  oral  and  written  publications  for 
criminal  purposes,  ib. 
CONCLUSIONS: 

ought  not  to  be  drawn  generally,  from  cases  of  particular  hard- 
ship, ib.  Hv. 
CONFESSION: 

of  publication,  ii.  39. 
CONSTABLE : 

evidence  of  being,  ii.  3. 
CONSTITUTION: 

publications  against,  ii.  160. 
Ld.  Loughborough's  observations,  ii.  110. 
grounds  of  the  offence,  ii.  161. 
Stat.  13  Eliz.  c.  1,  ii.  161  ; 
6  Ann.  c  7,  s.  7,  ii.  161 ; 
13  C.  2,  c.  1,  ii.  163. 
CONTEMPTS: 

against  the  king's  judges,  ii.  194. 
in  what  the  offence  consists,  ii.  194. 
of  judges  of  superior  courts,  ii.  195. 
of  inferior  magistrates,  ii.  195. 

when  words  of,  are  indictable,  ii.  195,  196.  , 

binding  to  good  behaviour,  ii.  200. 
CONTUMELY: 

not  a  substantive  ground  of  action,  by  the  law  of  England, 

Prel.  Dis.  Iv. 
and  insult,  the  foundation  of  the  action,  according  to  the  Ro- 
man law,  Prel.  Dis.  xxix. 
CONVICIUM: 

of  the  Roman  law,  what,  Prel.  Dis.  Ixxi. 
CORNELIAN  LAW: 

penalty  imposed  on  a  libeller  by,  Prel.  Dxs.  xxxvii. 
CORNFACTOR: 

words  of,  i.  127. 
COSTS  ■ 

provision  of,  st.  21.  J.  1,  c.  16.  ii.  113. 

construction  of  this  st.  ib. 

does  not  extend  to  Scan.  Mag.  ib. 

nor  to  action  for  special  damage,  ib. 

where  words  are  in  themselves  actionable,  ii.  114. 

in  the  case  of  different  counts,  some  actionable,  others  not,  ii. 

115. 
damages  under  a  writ  of  inquiry,  ib, 

Vol.  IL  99 


426  INDEX. 

COSTS. 

inferior  courts,  ib. 

St.  58  G.  3,  c.  30,  s.  2,  ib. 
22  &  23,  c.  2,  s.  9,  ib. 

certificate  under,  ii,  116. 

of  information,  see  Information. 
COUNSEL: 

speech  by,  when  actionable,  i.  285- 
COUNTY: 

proof  of  pubHcation  within,  ii.  35. 
COZENING: 

charge  of,  i.  87. 
CREMENTIUS  CORDUS : 

charge  against,  Prcl.  Dis.  cv. 

his  defence,  ib. 

vohmtary  death,  ib. 
CRIME : 

imputation  of,  generally  actionable,  i.  11. 

nature  of  the  offence  imputed,  ib. 

doubts  formerly  prevailed  on  the  subject,  i.  11. 

reason  for  this,  i.  12. 

to  be  actionablo,  must  be  of  an  offence  punishable  in  a  tem- 
poral court  of  criminal  jurisdiction,  i.  21. 

must  be  of  a  fact,  i.  23. 

general  terms  of  abuse,  not  actionable,  i.  24. 

imputation  of  offence,  merely  spiritual,  not  actionable,  ib. 

f;eciis,  if  also  punishable  in  temporal  courts,  i.  28. 
CRIMINAL  CHARGE: 

imputation  of  criminal  solicitation  to  commit  a  felony,  i,  33. 

to  commit  a  misdemeanor,  i.  36. 

charge  of  misdemeanor,  i.  37. 

of  being  the  author  of  a  libel,  ib. 

of  keeping  a  disorderly  house,  ib. 

subornation  of  perjury,  i.  38. 

receiving  stolen  goods,  ib. 

selling  unwholesome  beer,  i.  39. 

of  any  indictable  offence,  ib. 

of  being  a  regrator,  i.  40. 

a  common  barrator,  ib. 

of  maintaining  a  suit,  ib. 

rule  laid  down  by  Ld.  C.  J.  De  Grey,  i.  41. 

general  inference  from  the  authorities,  i.  43. 

manner  of  the  imputation,  i.  44. 

words  must  be  capable  of  an  offensive  sense,  i.  45. 

must  have  been  used  in  that  sense,  i.  45. 

rule  where  words  are  ambiguous,  i.  46,  7. 

former  doctrine  as  to  the  benignior  sensus,  i.  47. 

that  doctrine  now  exploded,  i.  50, 

illustrations,  ib.  51. 


INDEX.  427 

CRIMINAL  CHARGE. 

general  well  laid  down  by  Ld.  Holt,  i.  52. 

rule  as  to  construction  after  verdict,  i.  53. 

present  rule,  i.  54,  55,  56,  57,  60. 

words  to  be  actionable  must  impute  an  act  done,  i.  62. 

imputation  of  an  act  may  be  inferred  from  indirect  words,  ib.  63. 

from  words  of  suspicion  i.  63. 

words  of  comparison,  i.  68. 

words  of  hearsay,  ib. 

words  of  interrogation  i.  69. 

words  disjunctive,  i.  70. 

words  adjective,  i.  71,  72. 

use  of  participle,  i.  72. 

words  which  scandalize  a  person  in  trade,  &c.  i.  73. 

words  ironical,  ib. 

words  in  general,  from  which  an  act  may  be  inferred,  i.  73, 74, 

75,  7G. 
words  imputing  intention  only,  i.  76. 
words  imputing  impossible  offence,  i.  77. 
words  are  actionable,  notwithstanding  their  inconsistency,  i.  78. 
or  grammatical  impropriety,  i.  79. 
criminal  quality  of  the  act  charged,  i.  79. 
words  of  known  legal  import,  ib. 
are  actionable  though  they  do  not  particularize  circumstances, 

ib. 
charge  of  murder,  actionable  without  proof  that  the  person  is 

dead,  i.  81. 
rule  as  to  particularity  exploded,  i.  85. 
action  hes,  in  respect  of  general  imputation,  ib. 
for  the  words  traitor,  murderer,  thief,  sheepstealer,  i.  86. 
words  too  general,  when  to  support  an  action,  i.  87. 
forsworn  charge  of  being,  i.  88. 
steahng,  i.  91. 
doubtful  words  may  acquire  an  actionable  sense  from  curcum- 

stances,  i.  93. 
and  shall  be  charged,  &c.  i.  94. 
I  will  make  thee  suffer  for  it,  ib. 
I  am  convinced  that  you  are  guilty,  i.  95. 
words  of  desert,  i.  96.  •       -ui     •   n-r 

words  apparently  innocent,  when  rendered  actionable,  i.  97. 
words  in  foreign  language,  i.  98. 
words  apparently  actionable,  may  be  explamed  by  the  context, 

i.  99. 
words  actionable,  from  description  of  circumstances,  i.  101. 
words,  charging  an  attempt  to  commit  a  crime,  i.  102. 
words,  charging  a  solicitation  to  commit  a  crime,  i.  104. 
words,  charging  a  preparation  to  commit  a  crime,  i.  106. 
apphcation  of  the  words  to  the  plaintiff,  ii.  109. 
how  inferred,  i.  109,  110,  HI. 


428    .  INDEX. 

CRIMINAL  INFORMATION: 

practice  of  court  of  K.  B.  not  reconcilable  with  the  ordinary 
principles  recognized  by  the  law  Prel.  Dis.  cxlvii. 
CRITICISM: 

literary,  to  what  extent  allowed,  i.  305. 
CUSTOMERS: 

loss  of,  ii.  63. 

D. 

DAMAGE: 

actual,  ought  not  to  be  essential  to  the  remedy,  Prel.  Dis.  xxvi. 
DAMAGES: 

right  to  compensation  for,  on  what  it  depends,  Prel.  Dis.  xlvi. 

once  recovered,  or  when  a  bar,  i.  208. 
occasioned  by  procurement,  not  the  subject  of  action,  ib. 
averment  of,  i.  439. 
see  declaration,  ib. 
special  averment  of,  i.  440. 
loss  of  marriage,  i.  441. 
where  it  involves  multiplicity,  i.  442. 
excessive,  new  trial  for,  ii.  105. 
DAMAGE  SPECIAL: 
proof  of,  ii.  62. 
where  admissible,  ib. 
loss  of  marriage,  ib. 
loss  of  customers,  ii.  63. 
loss  of  profits  by  dissenting  preacher,  ii.  63. 
loss  of  profits  at  place  of  public  amusement,  ii.  64. 
loss  of  profits  by  minister,  ii.  63. 
of  place  of  public  amusement,  ii.  64. 
must  result  from  defendant's  act,  ib. 
mast  be  the  natural  consequence  of  the  slander,  ib. 
refusal  to  deal  with  the  plaintiff,  ii.  65. 
injury  when  too  remote,  ib. 
recovery  of,  when  a  bar  to  future  action,  ii  66. 
evidence  to  increase,  ib. 

evidence  of  an  action  for  malicious  prosecution,  ib 
proof  of,  when  necessary,  ii.  66. 
DATE: 

of  libel,  how  far  evidence,  ii.  38. 
DECEASED: 

person  hbel  on,  ii.  212. 
DECEIT: 

the  proper  foundation  of  the  action  for  damages,  Prel.  Dis. 

xliv. 
may  consist  in  undeserved  commendation,  ib.  xlv. 
DECLARATION: 
in  general,  i.  356. 


INDEX.  ^    429 

DECLARATION. 

inducement,  i.  357. 

publication,  averment  of,  i.  358.  • 

of  words  in  foreign  language,  i.  361. 

statement  of  the  words,  ib. 

what  particularity  necessary,  i.  3G9. 

variance,  what  material,  ib. 

in  case  of  libel,  i.  376. 

application  of  matter  published,  i.  383. 

colloquium,  ib. 

application  of  the  words  to  the  plaintifl^  ib. 

extrinsic  circumstances,  averment  of,  when  necessary,  i.  391. 

mode  of  averment,  i.  392. 

extrinsic  circumstances,  when  unnecessary,  i.  393. 

averment  of  special  character,  i.  400. 

mode  of  averrment,  i.  402. 

words  published  in  foreign  language,  i.  411. 

words  affecting  plaintiff  in  special  character,  413. 

connection  of  the  words  with  extrinsic  facts,  i.  418. 

innuendo,  use  of,  i.  418. 

malice,  averment  of,  i.  433. 

falsity,  averment  of,  i.  433,  436. 

damage,  averment  of,  i.  4  £9. 

special  damage  must  be  averred,  i.  440. 

for  a  malicious  prosecution,  i.  445. 

must  show  a  prosecution  instituted  and  determined,  i.  445.. 

description  of  the  bill  or  indictment,  i.  446. 

of  the  court,  i.  446. 

of  the  charge,  i.  447. 

effect  of  variance  in  stating,  i.  447. 

determination  of  the  prosecution,  i.  449. 

the  damage  to  the  plaintiff,  i.  452. 

joinder  of  counts,  i.  443. 
DEFAMATION: 

form  of,  when  most  injurious,  Prel.  Dis.  xiii. 

false  testimony,  ib.  xiv. 

indirect  effect,  ib.  xv. 
DEFENDANT: 

evidence,  when  incumbent  on,  ii.  84. 

defence  by,  ii.  87. 

procurement  by  plaintiff,  ii.  87. 

evidence  for,  in  case  of  criminal  prosecution,  ii.  325. 
DEFENDANTS: 

joinder  of,  i.  354. 
DELIVERY: 

of  sealed  libel,  whether  a  publication,  ii.  42. 
DELOLME: 

his  Essay  on  the  Constitution  of  England,  Prel.  Dis.  xcdii 


430      ^  INDEX. 

DELOLME. 

observations  on  the  censorship  of  the  press,  ib. 

his  observation  on  the  effect  of  the  liberty  of  the  press  in 
England,  ib.  cvi.  cvii. 
DEMURRER: 

Lord  Coke's  advice  as  to,  i.  491. 
DIPLOMA: 

proof  by,  when  necessary,  ii.  5 — 9. 
DISCLOSURE : 

of  author's  name  at  time  of  publication,  effect  of,  ii.  248. 
DISCUSSION,  FREE: 

privilege  of,  in  England,  Prel.  Dis.  c. 

advantages  of,  ib.  ci. 

observations  of  M.  Delolme  upon,  ib.  c. 

of  M.  Cottu,  ib.  cii. 

free  abuse  of  the  privilege,  ib.  cix. 
DISINHERISON: 

words  tending  to,  i.  142. 

limitation  of  the  action,  i.  142. 
DISORDER,  INFECTIOUS: 

words  imputing,  i.  113. 

when  actionable,  ib. 

ground  of  the  rule,  ib. 

limit  of  the  action,  i.  114. 
DRAMATIC  PERFORMANCES: 

restraints  on,  Prel.  Dis.  cxiv. 
DYER: 

words  of  a,  i.   139. 

E. 

EARL  MARSHAL: 

court  of,  ii.   127. 

before  whom  held,  ii.  127. 

prohibition  to,  ib. 
ECCLESIASTICAL  COURT: 

see  Prohibition,  ii.  117. 
EDGAR: 

law  of,  Prel.  Dis.  xl. 
EFFIGIES: 

carrying  of,  i.  173. 

riding  Skimmington,  i.  173. 
EGYPT: 

laws  of,  Prel.  Dis.  vii. 

singular  mode  of  trial  in,  ib.  ix. 
ENGLAND : 

Law  of,  where  definite,  Prel.  Dis.  xxxi. 

ground  of  remedial  action  by,  ib. 

differs  from  the  ancient  Roman  and  civil  law,  ib. 


INDEX.  ,     431 

ENGLAND: 

distinction  between  oral  and  written  communication,  ib.  Ixxii. 

in  civil  cases,  ib, 

in  criminal  cases,  ib.  Ixxiii. 
EUTOPIA: 

of  Sir  T.  Moore,  Prel.  Dis.  xciii. 
EVIDENCE: 

of  special  character,  ii.  1. 

attorney,  ib. 

magistrate,  ib. 

peace  officer,  ib. 

constable,  ii.  3. 

excise  and  custom-house  office,  ib. 

physician,  ib.  3 — 9. 

of  character  in  general,  ii.  7. 

of  prefatory  allegations,  ii.  12. 

of  publication,  ii.  12,  13. 

when  words  are  published  in  a  foreign,  language,  ii.  12, 

en  an  indictment,  see  Indictment,  ii.  309. 
EXTRINSIC  FACTS: 

when  to  be  averred,  i.  392. 

omission  to  prove  when  fatal,  i.  405. 

F. 
FALSE  NEWS: 

provision  of  ancient  statutes,  as  to,  Prel.  Dis.  xli. 
writers  of,  punishable,  ii.  224. 
FALSITY: 

of  communication  essential  to  the  right  to  damages,  Prel. 

Dis.  xlviii. 
of  the  defamation  essential  in  principle  to  the  right  to  da- 
mages, ib.  xliv, 
essential  to  right  of  action  for  damages,  on  the  ground  of  po- 
licy, ib.  xlviii.  .  . 
of  communication,  whether  essential  to  criminal  habihty,  ib. 

cxix. 
of  the  imputation  in  civil  action,  averment^of,  i.  433,  436. 
see  Declaration— defendant's  knowledge  of,  i.  436. 
not  evidence  to  show  malice,  where  no  justification  pleaded, 

ii.  59. 
FEELINGS:  ^    ^       .       ^    ,  ^. 

mere  injury  to,  not  a  substantive  ground  of  action,  Prei.  L»is. 

Iv. 
FIDES  VERI: 

use  of  the  terms  in  civil  law,  ib.  xxxvi. 
FILCHER,  COMMON: 

imputation  of  being  a,  i.  87. 
FINDER  OF  LIBEL: 

whether  punishable  for  possession,  ii.  227, 


482  INDEX. 

FOREIGN  LANGUAGE : 

declaration  for  slander,  published  in,  i.  411. 

proof  of  publication  of  words  in,  ii.  52. 
FORSWORN  : 

imputation  of  being,  i.  88. 
FOX: 

his  observations  on  debate  on  the  Libel  Bill,  Prel.  Dis.  Ixvii. 
FRANCE : 

provision  of  the  code  penal,  Prel.  Dis.  xxxiii. 

elFect  of  the  Veritas  convicii,  ib.  xxxiv. 

code  penal,  as  to  revelation  of  secrets  by  physicians,  &c.  ib. 
Ix. 
FRIENDLY  SOCIETIES: 

law  of,  Prel.  Dis.  xii. 
FRANKLIN,  RICHARD  : 

conviction  of,  ii.  188. 
FRAUD : 

ground  of  civil  action  for  damages,  Prel.  Dis.  xlvi. 
FUNDS,  PUBLIC: 

combining  to  raise  the  price  of,  ii.  224. 

G. 

GAZETTE: 

evidence  to  prove,  what,  ii.  309. 
GENERAL  ISSUE  : 

what  is  evidence  under,  i.  453. 

see  Plea. 

in  what  cases  defendant  is  confined  to  this  plea,  i.  457. 
GOVERNMENT: 

libel  on,  ii.  183. 

limitation  of  the  offence,  ii.  183,  184. 

Lawrence,  conviction  of,  ii.  186. 

Tiitchin,  conviction  of,  ii.  187. 

Clarke,  John,  conviction  of,  ii.  188. 

Franklin,  Richard,  conviction  of,  ii.  188. 

Home,  conviction  of,  ii.  191. 

Cobbett,  conviction  of,  ii.  193. 

Fisher,  Lovel,  Gale,  Jones,  Burdett,  cases  of,  ii.  194, 
GRAND  JURY: 

presentment  by,  not  actionable,  i.  241. 

H. 

HAND- WRITING : 

proof  of  pubhcation  by,  ii.  16. 
proof  by  comparison  inadmissible,  ii.  20. 
evidence,  as  to,  by  persons  of  skill,  ii.  26. 
imitated  hand,  evidence  as  to,  ii.  26. 


INDEX.  433 

HARRISON: 

conviction  of,  ii.  162. 
HARVEY,  WILLIAM: 

case  of,  ii.  IbL 
HEARSAY:  .      .,      .        ,      ..    ,^, 

proof  on  replication  of  de  injuria  to  justification,  &c.  u.   lUJ. 

HORACE: 

dialogue  with  Trebatius,  Prel.  Dis.  xxxvn. 
HORNE : 

conviction  of,  ii.  19L 
HUSBAND  AND  WIFE: 

words  of  a,  i.  141. 
HUSBANDMAN : 

words  of  a,  i.  141. 

1. 
ILLEGAL  ACT; 

publications  exciting  to,  ii.  207. 
ILLEGAL  OCCUPATION: 

action  for  slander,  in  respect  of,  not  maintainable,  n.  87. 
INCONTINENCY: 

words  imputing  not  actionable  without  special  damage,  i.  IJb. 

199,  200,  201,  202. 
words  of,  ii.  122,  124. 
INDICTMENT: 

copy  of,  how  produced  and  proved,  ii.  67,  68. 
for  libel  on  memory  of  deceased  person,  ii.  212.  • 
mode  of  framing,  ii.  302. 
who  chargeable  as  principals,  ii.  302. 
averment  of  falsity  immaterial,  ii.  303. 
averment  of  extrinsic  facts,  ii.  303. 
when  necessary,  ii.  303. 
mode  of  averment,  ii.  303. 
averment  of  pubUcation,  ii.  308. 
averment  of  intention,  ii.  306. 
evidence  on,  ii.  309. 
proof  of  introductory  averments,  ii.  309 
by  a  gazette,  ii.  309. 
by  the  king's  proclamation,  ii.  310. 
of  pubhcation,  ii.  312. 
by  confession,  ii.  313. 
proof  of  malice,  ii.  322. 
evidence  for  defendant,  ii.  325. 
INFORMATION : 

proceeding  by,  ii.  272. 
kinds  of,  ii.  273. 
by  attorney-general,  ii.  273. 
in  what  cases  usually  filed,  ii.  273. 
granted  by  the  King's  Bench,  ii.  273. 
by  master  of  the  Crown  Office,  ii.  293. 
Vol.  II.  100 


434  INDEX. 

INFORMATION. 

Stat.  4  and  5  W.  and  M.  ii.  274. 

granted  by  court,  when,  ii.  274. 

reflections  on  clergy,  ii.  274. 

on  course  of  justice,  ii.  274. 

publication  of  evidence  on  coroner's  inquest,  ii.  275. 

libel  reflecting  on  administration  of  justice,  ii.  275. 

on  a  body  of  men,  ii.  275. 

on  magistrate,  ii,  27C,  277. 

on  naval  officer,  ii.  278. 

on  a  nobleman,  ii.  278. 

mayor  of  a  town.  ii.  278. 

case  of  Cock  Lane  ghost,  ii.  279. 

not  essential  that  the  libel  should  charge  a  criminal  actii.  280. 

must  be  of  a  personal  nature,  ii.  280. 

malice  esseiitial,  ii.  281,  282. 

rules  to  be  observed  on  application  for,  ii.  284. 

applicant  must  waive  right  of  action,  ii.  284. 

must  be  promptly  made,  ii.  285. 

not  necessary  that  all  reflected  on  should  join,  ii.  285. 

affidavits  on  apphcation  must  not  be  entitled,  ii.  275. 

affidavits  on  showing  cause  may  or  may  not  be  entitled,  ii.  286. 

affidavits  after  rule  made  absolute  must  be  entitled,  ii.  286. 

affidavits  at  nisi  prius,  when  sufficient,  ii.  286. 

must  show  the  application  of  the  libel,  ii.  286. 

and  the  fact  of  publication  by  the  party  proceeded  against,  ii. 
286,  287'. 

exculpatoiy  affidavit  necessary,  ii.  287. 

exceptions,  ii.  288. 

affidavits  in  confirmation,  ii.  289. 

information  grantable,  though  the  affidavits  be  contradictory,  ib. 

costs  of  application,  ii.  291. 

joint  information  not  grantable  on  distinct  rules,  ii.  291. 

provisions  of  stat.  4.  and  5  W.  and  M.  c  18,  s.  2.  ii.  291. 
INNUENDO  : 

use  of,  i.  418. 

where  necessary,  i.  418. 

office  of,  i.  421. 

cannot  supply  the  want  of  a  colloquium. 

defective  consequence  of,  i.  426. 

when  repugnant  or  insensible,  i.  428. 

proof  of,  ii.  51. 
INNUENDO  : 

proof  of  a  fact  for  the  jury,  ii.  51. 

where  words  are  pubUshed  in  a  foreign  language,  ii.  51. 
INQUIRY  :  a  &     &  . 

proof  on  execution  of,  ii.  82. 
INSPECTOR  OF  FRANKS: 
evidence  by,  ii.  27. 


INDEX.  435 

INTENTION  : 

of  the  author  how  far  material  in  principle,  Prel.  Dis.  Ixxi. 

in  the  ahstract,  ib.  Ixxiii. 

in  reference  to  cu-cumstances,  ib.  Ixxix. 

when  in  reference  to  the  real  motive  and  intention  of  the  au- 
thor or  publisher,  ib,  Ixxxiv. 

honest,  where  a  defence  to  a  civil  action,  ib.  Ixxxv. 

doctrine  of  the  law  of  England  on  this  point,  ib.  Ixxxvi. 

of  the  law  of  Scotland,  ib. 
'    how  far  essential  to  criminal  liability,  ib.  cxxxviii. 

in  the  abstract,  and  without  reference  to  circumstances,  no 
defence  against  a  criminal  charge,  ib.  cxxxix. 

what  necessary  to  constitute  an  indictable  publication,  ii.  240. 

when  specific  intention  is  material,  it  must  be  proved  as  laid, 
ii.  323,  324. 

to  apply  tie  slander  to  plaintiff  or  prosecutor,  ii.  321. 

opinion  of  witnesses  on  the  subject,  ib. 

what  sufficient  ground  for  such  opinion,  ii.  324. 

specific  malicious  intention,  when  to  be  averred,  i.  438.    Seb 

MALICE. 

INTESTABILIS: 

meaning  of,  in  civil  law,  Prel.  Dis.  Xxxvii. 


JUD.E  A : 

laws  of,  Prel.  Dis.  x.  xi. 
JOINDER : 

see  parties,  i.  347. 

of  several  plaintifts,  i.  347. 

of  husband  and  wife,  i.  348. 

of  defendants,  i.  354. 
JUDGMENT- 

arrest  of  ii.  108. 

where  one  of  several  counts  is  defective,  ii.  108. 

count  on  words  spoken  at  different  times,  ii.  108. 

practice  as  to  venire  de  novo,  ii.  110. 
JUDGES: 

contempts  against,  ii.  195. 

of  superior  courts,  ii.  195. 

of  inferior,  or  magistrates,  ii.  195. 
JUDICIAL  PROCEEDING: 

justification  arising  from,  i.  240. 

judgment  of  court-martial,  i.  240. 

presentment  by  grand  jury,  i.  241. 

pubUcation  made  in  the  course  of,  not  libellous,  i.  246. 

publication  of,  i.  257. 

not  justifiable,  when,  i.  263. 

in  respect  to  subject  matter,  i.  264. 

blasphemous  libels,  i.  264. 

ex  parte  criminal  proceeding,  i.  265. 


436  INDEX. 

in  respect  of  the  manner,  i.  269. 
no  misrepresentation  allowable,  i.  270. 
JULIUS: 

libels  on  the  emperor,  Prel.  Dis.  cv. 

are  to  judge  of  sen^e  and  meaning  of  the  alleged  libel,  ii.  327. 
of  the  fact  of  pubUcation,  ib. 
of  the  occasion  of  publishing,  ii.  329. 
of  the  intention  of  publishing,  ib. 
effect  of  the  libel  act,  ii.  332. 
JURY:  ,        ..   __ 

right  of,  to  deliver  a  general  verdict  at  common  law,  n.  3o5. 
Penn  and  Mead's  case,  ii.  335. 
declared  by  statute,  ii.  354. 
Nathaniel  Thompson's  case,  ii.  337. 
Seven  Bishops'  case,  ii.  238. 
Tutchin's  case,  ii.  340. 
Clerk's  case,  ii.  341. 
Owen's  case,  ii.  342. 
Nutt's  case,  ii.  342. 
Shebbeare's  case,  ii,  342. 
Woodfall's  case,  ii.  342. 

Shipley  (Dean  of  St.  Asaph's)   case,  ii.  344. 
argument  in  the  Dean  of  St.  Asaph's  case,  ii.  347. 
JUSTICE: 

administraHon  of,  publications  reflecting  on,  ii.  200,  201. 
JUSTICE    OF  THE    PEACE 

words  of,    ii.  130.  131. 
JUSTICES: 

of  the  peace,  contempts  of,  ii.  195. 
JUSTIFICATION: 

truth,  where,  i.  229.     See  Truth. 

absolute,  publication  made   in  the  course  of  a  parliamentary 

proceeding,  i.  239. 
absolute,  publication  in  course  of  judicial  proceeding,  i.  239. 
petition  to  parliament,  i.  243. 

proceeding  in  court  of  justice,  i.  246. 
nde  does  not  extend   to  any  extrajudicial  publication,  i.  254. 
proceeding  in  parliament,  i.  257. 
course  of  proof,  where  pleaded,  ii.  66. 
truth  of  alleged  slander,  ii.  100.     See  tit.  Truth, 
hearsay,  ii.  103.     See  tit.  Hearsay. 


K. 

KING: 

the  title  and  character  of,  how  guarded,  ii.  169. 


INDEX.  ^^'^ 

Statutes  concerning,  n.  IbU. 

7  E.  1,c.  34,  ii.  169. 

2  R.  2,  St.  1,  c.  5,  ii.  169. 

1  and  2  P.  and  M.  c  3,  ii.  170. 

4  and  5  P.  and  M.  c.  9,  ii.  170. 

1  W.  and  M.  st.  2,  s.  9,  ii.  170. 

6.  Ann.  c.  7,  s.  7,  ii.  171. 

36.  Geo.  3,0.7,  ii.  171. 

contempts  of  king's  person,  n.  17^- 

denying  his  title  to  the  crown,  n.  173. 
KING'S  PROCLAMATION: 

proof  by,  ii.  310. 
KNAVE :  . 

imputation  of  bemg,  i.  129. 

^^^Sdfn?? knowledge  of  falsity,  when  to  be  averred,  i.  436. 

L. 

LAMBERT  AND  PERRY : 

case  of,  ii.  175,  185. 
LAUDATORES: 

practice  of  Roman  law,  as  to,  Prel.  Dis.  xv. 

■^^^lunicipal,  how  far  it  may  interfere  to  protect  character,   Prel. 

Dis.  xxi. 
LAWRENCE: 

conviction  of,  ii.   186. 

^^^f^all  civilized  nations,  restrain  abusive  and  injurious  commu- 
nication, Prel.  Dis.  vi. 

^^^UfficiUtyTto  restrain  the  right  of  communication,  Prel.  Dis.i. 
importance  of  laws  on  this  subject,  ib.  n. 

rlaiural  progress  of,  m  restraint  of  commumcations  as  to  char- 
acter,  ib.  vi. 
■^^^  objection  that  the  law  of,  is  too  vague,  considered,  Prel.  Dis.  i. 

CXV.  .        T      ■.       -i^ 

difficulty  of  establishing  precise  limits,  ib.  _  _ 
o-rmeral  condition  annexed  to  hberty,  ib.  cxviii. 
dictinction  between  oral  and  written  publications,  with  a  view 

to  criminal  liability,  why  valuable,  ib.  cxx.x. 
evil  consequence  from  subjecting  the  publisher  of  what  is 

true  to  penal  censures,  how  migrated,  Prel.  Dis.  cxxx. 
meaning  of  the  term  according  to  the  law  of    England,  ib. 


CXXXVll. 


438  INDEX. 

LIBEL: 

on  individual,  whether  it  ought  to  be  visited  both  civilly  and 

criminally,  ib.  clx. 
how  punishable  by  the  law  of  the  Twelve  Tables,  ib.  cxlix. 
actionable,  why,  i.  148. 
indictable  in  early  times,  i.  153. 
Adam  de  Ravensvvorth's  case,  i.  153. 
practice  of  the  Star  Chamber,  i.  154. 
Lord  Holt's  doctrine,  i.  157. 
Lord  Hardvvicke's,  i.  157. 
case  of  Thornley  u.  Lord  Kerry,  i.  162. 
ancient  law  on  the  subject,  i.  166. 
extent  of  the  action,  i.  167. 
kinds  of  libel,  i.  167. 
in  writing,  i.  167. 
without  writing,  i.  169. 
by  pictures,  ib. 
general  rule,  i.  169. 

special  damage  unnecessary  to  be  proved,  i.  170. 
Sir  W.  Blackstone's  observations  on  tins  head,  i.  170. 
carricatures,  i.  171. 
carrying  effigies,  i.  173. 
publication  of,  what  amounts  to,  ii.  16. 
proof  of  publication  of,  by  agent,  ii.  34. 
publication  by  means  of  post,  ii.  35. 
in  foreign  language,  how  proved,  ii.  50. 
defendant  entitled  to  have  the  whole  of  the  publication  read, 

ii.  85. 
personal  defamation,  when  it  amounts  to,  ii.  210. 
grounds  of  the  offence,  ii.  210,  211. 
distinction  between  oral  and  written  defamation,  ii.  211. 
on  memory  of  person  deceased,  ii.  212. 

not  reflecting  on  character  of  any  person  in  particular,  ii.  214. 
possession  of,  whether  criminal,  ii.  226. 
writing  of,  whether  indictable  without  publication,  ii.  229. 
publication  of,  what  constitutes,  ii.  232. 
writing  of,  whether  criminal,  ii.  234. 
Lord  Holt's  opinion,  ii.  234. 
Beare's  case,  ii.  234. 
Lamb's  case,  ii.  235. 
John  de  Northampton's  case,  ii.  235. 
Knell's  case,  ii.  237. 

defamatory,  grounds  of  criminality,  ii.  250. 
definition  of,  ii.  267. 
sense  and  meaning  of,  ii.  320. 
usually  a  question  for  the  jury,  ii.  620. 

the  whole  to  be  read  in  criminal  as  well  as  civil  proceedings, 
ii.  320. 


INDEX.  439 

question  of  libel  or  no  libel  a  question  of  law,  where  the  sense 
is  ascertained,  ii.  322. 
LIBEL  BILL: 

practice,  which  gave  rise  to,  ii.  332. 
LIBELLUS  FAMOSUS: 

constitution  in  the  Theodosian  code,  as  to,  Prel.  Dis.   xxxix. 
LIBELS: 

Selden's  observations  on,  Prel.  Dis.  ci. 
LIBERTY: 

consequence  of  abuse  of,  Prel.  Dis.  xcix. 
LIBERTY  OF  THE  PRESS: 

advantageous,  when,  Prel,  Dis.  ci. 
•  when  the  contrary,  ib.  cii. 

under  a  rigid  democracy,  ib.  ciii. 

under  an  arbitrary  government,  ib.  civ. 

injurious  consequences  of  abusing  the,  ib.  cxii. 
LICENSER: 

public  expediency  of,  Prel.  Dis.  xcv. 

injurious  consequences  from  appointing,  ib.  cviii. 
LIMITATIONS: 

Stat,  of  21  J.  1,  c.  16,  s.  3,i.  473. 

must  be  pleaded,  i.  474. 
LONDON: 

custom  of  carting,  ii.  123. 
LOSS: 

to  the  party  defamed,  the  ground  of  action  by  the  law  of  Eng' 
land  for  damages,  Prel.  Dis.  Ixviii. 

secus,  according  to  the  law  of  Scotland,  ib.  Ixviii. 

M. 

MAGISTRATE : 

evidence  of  being,  ii.  2. 
MALEDICTUM: 

of  the  Roman  law,  what,  Prel.  Dis.  Ixxi 

what  amounted  to,  ib.  Ixxii. 

to  say  that  a  man  was  bald,  ib. 
MALICE : 

intention  considered,  independently  of  occasion  and  circum- 
stances, how  far  material,  i.  210. 

malice  in  law,  what,  i.  213. 

negligence  amounts  to,  i.  218. 

actual  malice,  what,  i.  227. 

intention,  when  immaterial,  i.  229. 

express,  when  necessary  to  the  action,  i,  215. 

malice  in  fact,  i.  292. 

when  essential,  i.  292. 

where  character  of  servant  is  given,  i.  293. 

express,  where  necessary  to  be  proved,  i.  301. 


440  INDEX. 

MALICE. 

specific,  malicious  intent,  when  to  be  averred,  i.  433. 

averment  of  defendants,  i.  438. 

proof  of,  ii.  52. 

inference  of  law,  when,  ii.  52. 

actual  proof  of  it,  ii.  53. 

other  words  or  libels,  when  admissible  to  prove,  ii.  53. 

inadmissible,  when  no  question  as  to  the  animus,  ii.  54. 

evidence  of,  in  an  action  for  malicious  prosecution,  ii.  55. 

no  distinction  in  this  respect  between  words  actionable  or  not, 

ii.56. 
words  admissible  to  prove  spoken  after  those  laid  in  the  declar- 
ation, ii.  56. 
sale  of  other  papers,  ii.  57. 
proof  of,  when  unnecessary,  ii.  61. 
not  a  q  lestion  for  the  jury  where  the  communication  exceeds 

the  limits  supplied  by  the  occasion,  ii.  66. 
in  criminal  cases,  what  sufficient,  ii.  243, 
Harvey's  case,  ii.  243. 
Burdett's  case,  ii.  244. 
bona  fide  intention,  where  a  defence  in  case  of  prosecution  for 

libel,  ii.  255. 
actual,  where  essential  to  criminal  publication,  ii.  256. 
necessity  of,  to  constitute  an  indictable  publication,  ii.  240, 
when  a  necessary  inference  from  the  publication,  ii.  322. 
MALICIOUS  PROSECUTION: 
declaration  for,  i.  445. 

must  allege  a  prosecution  instituted  and  determined,  i.  445. 
proofs  in  action  for,  ii.  67. 
prosecution  by  defendant,  ii.  67. 
how  proved,  ii.  67. 

proof  of  order  of  court  unnecessary,  ii,  67. 
acquittal  of  plaintiff,  ii.  68. 
identity  of  plaintiff,  ii.  69. 
variance  from  charge,  ii.  70. 
information  before  magistrate,  ii.  70. 
want  of  probable  cause,  ii.  71. 

where  question  of  law,  ii.  73, 

probable  cause  as  to  part  only,  ii.  74. 
malice,  a  question  for  the  jury,  when,  ii.  74. 

proof  of,  necessary,  ii.  75. 

abandonment  of  prosecution  not  sufficient,  ii.  77, 
against  magistrate  for  mahcious  conviction,  ii,  77. 
malice,  how  proved,  ii.  77,  78. 
evidence  by  defendant. 

probable  cause,  ii.  79. 

acting  on  opinion  of  counsel,  ii.  79. 

doubt  manifested  by  jury,  ii.  79. 

proof  of  probable  cause,  ii.  79,  80. 


INDEX. 


441 


MALICIOUS  PROSECUTION.        ,..,,.        .,  .... 

character  of  plaintiff,  when  admissible  in  evidence,  u.  »i. 

damage  sustained,  ii.  81. 

proof  of  costs  expended,  ii.  82. 
MARRIAGE,  LOSS  OF: 

when  admissible  in  evidence,  ii.  62. 
MASTER:  .. 

proof  of  action  against,  by  servant,  n.  18. 

the  giving  character  of  servant,  where  a  defence,  i.  iJ5. 
MATTH.EUS : 

treatise  by  de  Criminibus,  Prel.  Dis.  xxxvi. 
MEDISANT: 

case  of,  in  France,  ib.  lix. 

MEANING  OF  LIBEL:  .^Ki„„ 

usually  a  question  for  the  jury,  where  the  terras  are  ambigu- 
ous, ii.  320. 

evidence,  as  to,  ii.  321. 
MERCHANT: 

words  of,  i.  127. 

words  imputing  insolvency,  i.  138. 
MERCURIUS  POLITICUS: 

publication  of,  ii.  1G4. 
MILLINER: 

words  of  a,  i.  140. 
MITIGATION: 

evidence  in,  ii.  87,  88.     i.  2oo. 

bad  character  of  plaintiff,  ii.  88,  &c. 

general  evidence  admissible  to  impeach  plaintiff  s  character, 

evidence  of  particular  facts  inadmissible  ii   97,  98. 

where  source  of  libel  referred  to,  proof  of  sucli  information 

received  as  evidence  in  mitigation,  ii.  98,  99. 

counter  lil)els,  when  admissible,  li.  100. 

MITIOR  SENSUS: 

doctrine  of,  i.  95.     27  to  60. 

MONTESQUIEU:  .     t,    ,   t^        ,.• 

his  theory,  as  to  aristocratical  goverments,  Prel.  Dis.  cvi. 

MORALITY: 

publication  against,  ii.  155. 

general  rule,  ii.  155. 

Sir  C.  Sedley's  case,  ii.  155. 

Stat.  3.  G.  4,  c.  40.  s.  3,  ii.  159. 

indecent  exposure  or  exhibition,  u.  159. 
MORE: 

his  Utopia,  Prel.  Dis.  xciu. 
MOSAIC  LAW: 

provisions  of,  Prel.  Dis.  x. 

specific  punishment,  by,  ib.  xii. 
Vol.  II.  101 


442  INDEX. 

MURDERER: 

action  for  imputation  of  being,  i.  87. 

N. 
NEGLIGENCE: 

in  doing  an  injurious  act  sufficient  to  render  a  party  answera- 
ble for  the  consequences,  ii.  242. 
NERATIUS: 

abuse  of  the  law  by,  Prel.  Dis.  xxiv. 
NEWS,  FALSE: 

telling  of,  ii.  1G9. 
NEWSPAPER : 

liability  of  proprietor  of,  ii.  33. 

proof  of  ownership,  ii.  43. 

s<at.  38  G.  3,  c.  78,  ii.  43.- 
NEW  TRIAL: 

when  granted,  ii.  105. 

after  verdict  for  plaintiff^  ii.  105. 

for  excessive  damages,  ii.  105. 
NUTT,  RICHARD: 

conviction  of,  ii.  1G4. 

O. 
OCCASION: 

no  defence  where  the  party  is  guilty  of  an  excess,  Prel.  Dis. 
Ixxxvii. 

of  publishing  when  an  absolute  defence  on  a  criminal  charge, 
ib.  cxxxix. 

when  it  furnishes  a  complete  defence  independently  of  inten- 
tion, ib.  cxl. 

when  a  qualified  defence,  where  the  intention  is  bona  fide,  ib. 
cxli. 
OCCASION  AND  CIRCUMSTANCES: 

when  they  ought  to  supply  a  defence  independently  of  ques- 
tion of  intention,  Prel.  Dis.  Ixxix. 
OCCASION  OF  PUBLICATION: 

where  it  affords  an  absolute  defence  in  a  criminal  case,  ii.  244. 

publication  made  in  course  of  parliamentary  proceeding,  ii.  245. 

judicial  proceeding,  ii.  245. 

petition  to  the  House  of  Lords,  ii.  246. 

privilege  does  not  extend  beyond  the  occasion,  ii.  246. 
OFFICE  : 

words  affecting  persons  in,  i.  117. 

nature  of  the  office,  i.  117,  118. 

ground  of  the  action,  i.  118. 

distinction  between  words  imputing  corruption  and  words  im- 
puting incompetency,  i.  119. 

words  of  time  past,  i.  123. 

extent  of  the  action,!.  124. 


INDEX.  *45 


OFFICE. 

extends  to  all  offices  of  trust  or  profit,  i.  124. 
not  to  member  of  parliament,  i.  125. 


PAINE,  THOMAS: 

trial  of,  ii.  164. 
PALINODE: 

pronunciation  of,  Prel.  Dis.  xxiii. 
PAMPHLETS : 

evidence  as  to  publication  of,  ii.  313. 

PARDON: 

effect  of,  i.  238. 
PARLIAMENT: 

reflections  on  proceedings  of,  u.  202. 
prosecutions  for,  ii.  203. 
Maynard's  case,  ii.  203. 
Owen's  case,  ii.  203 
Stockdale,  prosecution  of,  ii.  204. 
Burdett,  Bart,  case  of,  ii.  200. 
petition  to,  not  libellous,  ii.  243. 
PARLIAMENTARY    PROCEEDING: 

publication  in  course  of,  not  actionable,  i.  239. 
PARLIAMENTARY   REPORTS: 

whether  libellous,  i.  259. 
PARTIES: 

to  a  civil  action,  i.  347, 
where  several  may  join,  i.  347. 
husband  and  wife,  i.  348. 
wife  must  not  join,  when,  i.  348. 
must  be  joined,  when,  i.  349. 
joinder  of  defendants,  i.  354. 
PAULUS: 

celebrated  response  of,  Prel.  Dis.  xxxv. 
PAWNBROKER: 

words  of,  i.  140. 
PEACE  OFFICER: 

evidence  of  being,  ii.  2. 
PECCATUM: 

use  of  the  term  in  civil  law,  Prel.  Dis.  xxxvi. 
PENAL  RESTRAINT: 

limits  of,  Prel.  Dis.  cxiii. 
PERRY : 

case  of,  ii.  175. 
PETITION: 

does  not  amount  to  a  libel,  when,  i.  3lo. 
PHYSICIAN: 

evidence  of  being,  ii.  3. 
words  of,  i.  126,  136. 


444  INDEX. 

PICKPOCKET: 

impntnfion  of  being,  actionable,  i.  60. 
PICTURES: 

ilefamalion  by,   distinction  by    the    civil    law,  Prel.  Dis.  Ixx. 
PLEA : 

i)i  what  cases  the  defence  may   be  pleaded,  i.  459. 

what  7)ii/.st  be  specially  pleaded,  i,  4 Go. 

of  speaking  the  words  in  general  not  material,  i.  443. 

of  the  general  issue,  what  it  puts  in  issue,  i.  453. 

justificaticn  by  truth,  i.  4G6. 

whether  justification  as  a  report  of  judicial  proceeding  must  be 
pleaded,  i.  468. 
special  justification,  how  pleaded,  i.  474. 

must  confess,  i.  475. 

justification  by  truth,  i.  476. 

certainty  what  degree  of,  requisite,  i.  476. 

with  reference  to  the  words,  i.  447. 

must  be  particular,  though  tlie  words  be  general,  i.  478. 

must  correspond  with  the  imputation,  i.  480. 

sufficieut,  if  the  substance  be  justified,  i.  483. 

of  justification,  that  the  alleged  libel  is  a  correct  report  of  a 
judicial  proceeding,  i.  485. 

publication  in  course  of  parliamentary  proceeding,  i.  487. 

in  course  of  judicial  proceeding,  i.  487. 

where  part  consists  of  a  report,  and  the  rest  of  comment,  i.  489. 

joinder  of  pleas,  i.  490. 

to  an  indictment  or  information,  ii.  307. 
POLICY: 

publications  against  sound  policy,  ii.  216. 

reflections  on  ambassadors,  ii.  216. 

foreign  potentates,  ii.  217,  218, 

false  prophecy,  ii.  219. 

Stat.  35  H.  8.  c,  14. 

5  Eliz  c.  15. 
POSSESSION  OF  LIBEL: 

whether  criminal,  ii.  226. 
POST: 

libel,  sent  by,  ii.  35. 
POST  MARK: 

evidence  of  publication,  where,  ii.  38,  39. 
PR^MUNlRE: 

what  amounts  to,  ii.   173. 
PRESS: 

liberty  of,  in  what  it  consists,  Prel.  Dis.  c. 

the  liberty  of,  a  security  against  encroachments,   ib.  cvii. 

liberty  of,  consequence  of  abusino-  the,  ib.  cix. 

powerful  a2;ency  of,  ib.  iv. — xcii. 
PRINTING,  ART  OF: 

effect  of  the  invention,  Prel.  Dis.  xcix. 


INDEX.  445 

PROBABLE  CAUSE: 

where  in  principle  it  ought  to  constitute  a  defence,  indepen- 
dently of  the  question  of  intention,  Prel.  Dis.  Ixxxii. 

in  cases  of  criminal  prosecutions,  ib. 

where  a  defence,  i.  27G. 

what  amounts  to,  i  299. 

speech  by  advocate,  i.  285. 

sland'T  of  title,  i.  289. 
PROCESS: 

against  the  person,  ii.  292. 

commitment  previous  to  indictment,  ii.  292. 

Derby's  case,  ii.  292. 

Wilkes's  case,  ii.  292. 

warrant  of  secretary  of  state,  ii.  292. 

by  magistrates,  ii.  294. 

Leach's  case,  ii.  295. 

general  warrants,  resolution  of  House  of    Commons,  as  to  ii 
295. 

provisions  of  stat.  43  G.  3,  c.  58,  s.  1,  ii.  296. 

general  warrants  for  seizure  of  papers  illegal,  ii.  298,  299. 

Lord  Camden's  judgment,  ii.  299. 

civil,  i.  341. 

bail,  i.  341. 

venue,  i.  341. 

Parties,  i.  347. 
PROFESSION: 

words  of  plaintiff  in,  i.  126. 

to  what  the  action  extends,  i.  126. 

must  apply  to  one  practicing  at  the  time,  i.  123. 
PROHIBITION: 

ground  of  the  writ,  ii.  117. 

Stat.  13  E.  1,  c.  4.  ii.  117. 

suit,  when  maintainable  in  the  Ecclesiastical   Court,  ii.    118 
119. 

spiritual  courts  have  no  concurrent  jurisdiction  with  courts  of 
common  law,  ii.  121. 

in  case  of  words  of  incontinency,  ii.  122. 

affidavit,  where  necessary,  ii.  124. 

provisions  of  stat.  1  Ed.  3,  H.  2,  c.  11,  ii.  125. 

Stat.  27  G.  3,  c.  44,  ii.  126, 

time  of  moving  for,  ii.  126. 

to  Earl  Marshal's  court,  ii.  127. 
PROPHECIES: 

false,  stat.  against,  ii.  219. 

stat.  35  H.  8,  c.  14,  ii.  219. 

5  Eliz.  c.  15,  ii.  219. 
PROSECUTOR: 

proof  of  being  in  action  for  malicious  prosecution,  ii.  69. 

see  tit.  Malicious  PROSEcnxroN. 


44(i  INDEX. 

PROVISIONS : 

attempt  to  raise  the  price  of,  by  false  rumours,  ii.  220,  221. 
PUBLICATION: 

essential  to  the  right  to  damages,  Prol.  Dis.  Ixix. 
aggravation  may  arise  from  the  mode  of  communication,  ib. 
what  sufficient  in  criminal  case,  ib.  cxxxiii. 
whether  act  anterior  to  pubhcation  ought  to  be  deemed  penal, 

ib.  cxxxiv. 
actual,  whether  necessary,  ii.  41. 
presumptive  evidence  of,  ib. 
of  libel,  what  amounts  to,  ii.  28. 
by  an  agent,  ii.  28,  31. 
servant,  ii.  28,  c3. 
by  bookseller,  ii.  30. 
editor  of  newspaper,  ii.  33. 
evidence  to  rebut,  ii.  33. 

of  libel  to  individual  reflected  on,  sufficient  in  case  of  indict- 
ment, ii.  225. 
whether  act  short  of  publication  is  illegal,  ii.  226. 
different  modes  of  publication,  according  to  Lord  Coke,  ib. 
doctrine  of  civil  law,  ib. 
practice  of  the  Star  Chamber,  ii,  228. 
Beare's  case,  ii.  229. 
Lord  Camden's  remarks,  ii.  229. 
of  libel,  what  amounts  to,  ii.  231. 
of  libel  in  foreign  language,  ii.  50. 
evidence  of,  in  case  of  indictment,  ii.  312. 
provisions  of  stat.  60  G.  3,  and  1  G.  4,  c.  9,  ii.  313. 
proof  of,  ii.  12,  13,  14. 
direct,  ii.  14,  15. 
by  hand-writing,  ii.  15. 
what  amounts  to,  ii.  16. 
provisions  of  stat.  38  G.  3,  c.  78,  ii.  43 
delivery  to  officer  of  Stamp  Office,  ii.  49. 
PUBLIC  SECURITY: 

how  provided  for,  Prel.  Dis.  xciii. 
by  previous  restraints,  ib. 

R. 
RAYNER : 

case  of,  ii.  203. 
REMEDIAL  ACTION: 

compensation  ought  to  be  apportioned  to  the  injury,  Prel.  Dis. 

xxiv. 
where  applicable,  ib.  xxv. 
in  all  cases  of  loss  or  detriment,  ib. 

though  the  benefit  lost  could  not  legally  have  been  claimed,  ib. 
limits  of,  ib.  xxiv. 
quaUty  and  consequence  of  the  defamatory  matter,  ib. 


INDEX.  447 

REMEDIAL  ACTION. 

ou"-ht  not  to  dej  end  on  actual  loss,  in.  xxvi. 
ought  not  to  be  extended  to  general  contumely,  ib.  xxviii. 
reason  why  desirable  to  extend  the  limits  of,  ib.  xxix. 
REPETITION:  ^   ^  .        .    .     , 

declaration  as  to  original  matter  not  a  defence  in  criminal  pro- 
ceeding, ii.  249. 
is  evidence,  to  rebut  presumption  of  malice,  u.  249. 
of  slander  heard  from  another,  whether  a  defence,  ii.  248. 
under  stat.  of  Scan.  Mag.  ii.  248. 
of  slander,  when  actionable,  i.  329. 
Lord  Northampton's  case,  i.  329. 

the  repeater  must  at  the  time  disclose  the  author  s  name,  i. 
332. 

of  slander,  i   ■   oo^ 

repeater  must  give  the  very  words  used,  i.  dd4. 
liable  when  he  publishes  against  his  own  knowledge,  i. 

33C. 
general  principle,  i.  339. 
REPUTATION : 

love  of,  a  great  principle  of  human  conduct,  Prel.  Dis.  xlix. 

RESTRAINTS: 

prohibitory  kinds  of,  Prel.  Dis.  xxii. 

preventive,  ib. 

penal,  ib.  xxiii. 

palinode,  ib. 

remedial,  ib. 

for  the  benefit  of  the  public,  ib.  Ixxxvm. 

such  restraints  necessary,  ib.  Ixxxix. 

to  prevent  dissolution  of  the  bonds  of  society,  ib. 

communications,  when  treasonable,  ib.  xc. 

incitements  to  break  the  law,  ib. 

communications  tending  to  extinguish  the  sense  of  moral  or 

religious  obhgation,  ib.  xci. 
the  prevention  of  such,  properly  within  the  scope  of  munici- 
pal laws,  ib. 
previous,  by  censorship,  ib.  xciii. 
penal,  limits  of,  ib. 
must  be  limited  by  tendency,  ib. 
of  the  press,  evil  resulting  from,  ib.  xcviii. 
weakening  of  mutual  confidence  between  the  government  and 
the  people,  ib.  c. 
ROGUE : 

words  charging  the  being  one,i.  97. 

ROMAN  LAW:  j  ■       ,.•  a 

wide  limits  of  the  action  for  contumelious  and  insulting  words, 

Prel.  Dis.  xxxi.  xxxii. 
any  defamation  actionable,  ib. 
singular  mode  of  defamation  practised  at  Rome,  ib, 


448  INDEX. 

ROMAN  LAW. 

action  maintainable  in  respect  of  insult  to  other  members  of 
the  family,  ib. 

by  the   heir,  in  respect  of  insult  to  the  memory  of  the   de- 
ceased, ib. 

gave  the  action  in  respect  of  insult  and  contumely,  ib.  xxix. 
xxxi. 

the  law  of  England  does  not,  ib. 
RUMOURS,  FALSE  : 

to  raise  price  of  hops,  ii.  221. 

an  offence  at  common  law,  ii.  220. 

to  raise  price  of  provisions,  ii.  220. 

diminish  price  of  staple  commodity,  ii.  221. 

S. 

SCANDALUM  MAGNATUM : 

provisions  of,  Prel.  Dis.  xli. 

truth  of  charge,  a  defence  against  proceeding  for,  ii.  255. 

statutes  of,  i.  175. 

3  E.  1,0.  24,  i.  175. 

2  R.  2,  St.  1,  c.  5.  ib. 

12  R.  2,  c.  11.  ib. 

whether  an  action  lay  at  common  law,  i.  178. 

who  entitled  to  maintain  the  action,  i.  179, 

none  brought  for  a  century  after  the  statutes,  i.  179. 

for  what  words,  i.  181. 

words  must  be  false,  i.  185. 

general  rule,  i.  188. 
SCHOOLMASTER: 

words  of,  i.  126. 
SCOTLAND: 

law  of,  in  respect  of  defamation,  indefinite,  Prel.  Dis.  xxxiii. 

instances,  ib. 

law  of,  as  to  the  intention  of  the  defendant,  ib.  Ixxxvi. 

see  Intentiox. 

law  of,  as  to  the  Veritas  eonvicii,  ib.  Ixiv. 

no  general  rule  yet  established,  ib.  Ixv. 

law  of,  allows  four  different  objects  to  be  attained  in  the  same 
proceeding,  ib.  Ixxxvi  ii. 

statutes  of,  as  to  slander,  ib.  xlii. 

law  of,  how  differing  from  the  civil,  as  to  defamation,  ib.  xliii. 

rule  of,  as  to  the  Veritas  eonvicii,  ib, 
SENSE: 

in  which  words  or  libels  to  be  iinderstood,  ii.  107. 

after  verdict,  court  will  not  listen  to  trivial  exceptions,  ii.  108. 

will  construe  doubtful  words  in  a  sense  which  will  support  the 
verdict,  ii.  108. 

to  be  collected  from  the  whole  of  the  words  or  libel,  ii.  85. 


INDEX.  449 

SENSE. 

by  evidence  of  document  referred  to,  ii.  86. 

of  words,  proof  of,  on  whom  incumbent,  ii.  84,  85. 
SERVANT: 

proof  ir  action  by,  against  master,  ii.  58. 

words  of,  i.  129. 

action  by,  giving  character,  where  defence,  i.  293. 
SEVEN  BISHOPS: 

case  of,  ii.  38,  39. 

proofs  against,  ii.  20. 
SHEBBEARE: 

trial  of,  ii.  104. 
SHEEPSTEALER: 

action  for  imputation  of  being,  i.  86. 
SKIMMINGTON: 

riding  of,  i.  173. 
SLANDER: 

repetition  of,  when  actionable,  i.  329. 

doctrine  laid  down  in  Ld.  Northampton's  case,  i.  330. 
SLANDER  OF  TITLE : 

when  actionable,  i.  191. 

special  damage,  essential,  ib. 
SOCIETY: 

state  of,  one  of  mutual  confidence,  Prel.  Dis.  xlviii. 

knowledge  of  character  therefore  necessary,  ib.  xlix. 
SOCIETY,  CIVIL: 

a  system  of  mutual  trust,  Prel.  Dis.  xvi. 
SOLICITATION : 

to  commit  a  breach  of  the  peace,  ii.  209. 
SOLON: 

law  of,  Prel.  Dis.  xxiv.  xxxiv. 
SOLVENCY:  .  ,.  . 

presumption  of,  in  case  of  purchase  on  credit,  a  tacit  condition, 

Prel.  Dis.  Ivii. 
SPECIAL  CHARACTER: 

mode  of  averring,  see  Declaration,  i.  408. 
words  of  person  in,  i.  117. 
churchwarden,  i.  124. 
escheator,  ib. 
master  of  mint,  i.  125. 
clerk  to  pubhc  company,  ib. 
steward  of  court,  ib. 
member  of  parliament,  ib. 
attorney,  i.  126. 
barrister,  ib. 
physician,  ib. 
clergyman,  ib. 
schoolmaster,  ib. 
Vol.  U.  102 


450  INDEX. 

SPECIAL  CHARACTER: 

merchant,  i.  127. 
tradesman,  ib. 
corn  factor,  ib. 
servant,  i.  129. 
jobber  in  public  fands,  ib. 
certainty  of  the  words,  i.  130. 
imputation  of  want  of  integrity,  ib. 
of  a  judge,  ib. 

justice  of  the  peace,  ib.  131. 
bishops,  i.  131. 

attorney  or  clerk  of  K.  B.  i.  132. 
attorney,  ib. 
tradesman,  i.  134. 
carpenter,  i.  135. 

imputation  of  want  of  ability,  ib. 
of  a  barrister,  i.  136. 
physician,  ib. 
apothecary,  ib, 
midwife,  i.  137. 
watchmaker,  ib. 

imputation  of  insolvency,  ib.  138. 
on  mercliants,  i.  138. 
traders,  ib. 

words  actionable,  though  they  do  not  impute  bankruptcy,  ib. 
words  actionable,  which  impute  want  of  credit,  i.  139. 
of  a  tailor,  ib. 
dyer,  ib. 
trader,  ib. 
stock-broker,  ib. 
pawnbroker,  ib. 
milliner,  i.  140. 
upholsterer,  ib. 
carpenter,  ib. 
husbandman,  i.  141. 
trader,  ib. 
bookseller,  ib. 
SPECIAL  DAMAGE: 

what  amounts  to  actionable  damage,  i.  190. 

preventing  of  plaintiff  from  selling  of  lands,  i.  191. 

preventing  plaintiff  from  acquiring  a  benefit,  i.  194. 

from  succeeding  to  a  living,  ib.  194,  195. 

from  getting  a  place,  i.  195. 

loss  of  marriage,  ib. 

what  constitutes,  i.  203. 

mere  apprehension  of  ill  consequence,  ib. 

how  special  damage  must  be  connected  with  the  slandfii  ib. 

must  be  the  natural  consequence  of  tlxe  words,  i,  3Q4. 

where  too  remote,  i.  207. 


INDEX.  4^1 

SPIRITUAL  COUKT: 

see  Prohibition,  ii.  116. 

STAMP  ■ 

unstamped  copy  of  newspaper,  evidence,  ii.  49. 

STAR  CHAMBER: 

Delomle's  observations  on,  Prel.  Dis.  xcm. 
STEALING: 

iX?aWe%ti,.y  o/'e™.  depends  on  subject  matte,  towW«h 

it  is  applied,  i.  93. 
STOCK  BROKER: 

words  of,  i.  139. 
STOCKDALE : 

prosecction  of,  ii.  204. 

SURETIES:  .    , ,     ••  „.^ 

of  the  peace,  when  reqmrable,  n.  267. 
for  the  good  behaviour,  ii.  269. 
when  requirable,  ib. 
John  de  Northampton's  case,  ib. 
for  contempts  of  judges  or  magistrates,  ib. 
of  magistrates,  ib. 

to  what  contempts  the  rule  extends,  ib. 
whether  they  r^uist  be  spoken  in  the  presence  of  magistrate. 

ii.  270.  ^    .  .    ., 

in  case  of  unmannerly  words  in  general,  lb 

recoo-nizance  to  keep  the  peace,  how  forfeited,  u.  271. 
nia^be  required  in  case  of  blasphemous  or  seditious  libels,  ib. 
St.  60  G.  8,  and  1  G.  4,  c.  16.  ib. 

T. 

TAILOR : 

words  of,  i.  130. 
TENDENCY' 

illegal,  sufficient  to  constitute  a  libel,  Prel.  Dis.  cxiv. 

THIEF:  . 

action  for  imputation  of  being,  i.  bb. 

charge  of  being,  i.  92,  99. 

evidence  of  not  being  used  in  felonious  sense,  u.  85. 

"^^^hifparloning  a  Roman  knight  who  had  libelled  him,  Prel.  Dis. 

cv. 
TIMBER: 

imputation  of  stealing,  i.  91. 

TITLE:  .  , 

slander  of,  malice  essential  to,  when,  i.  ol7. 

slander  of,  i.  287. 
TITLE  TO  LAND:  .  ,  ,  .  ,.<- 

words  impeaching,  not  actionable  without  special  damage,  i.  143. 


452  INDEX. 

TOPHAM: 

case  of,  ii.  213. 
TOULOUSE  : 

parliament  of,  decision  by,  Prel.  Dis.  lix. 
TRADER: 

words  imputing  insolvency,  i.  138,  139. 
TRADESMAN: 

words  of,  i.  127. 
TRAITOR : 

action  for  imputation  of  being,  i.  86. 
TREASON: 

mere  words  do  not  constitute  overt   act  of,  ii.  16G,  167. 

same  as  to  words  written  or  printed,  ii.  169. 
TREATISE: 

general  object  of  this,  Prel.  Dis.  v. 
TREBATIUS: 

dialogue  with  Horace,  Prel.  Dis.  xxxvii. 
TRIAL : 

incidents  to,  ii.  327. 

province  of  jury  on  criminal  trials,  ii.  332. 

effect  of  the  libel  act,  32  G.  3,  c.  60.  ib. 

occasion   of  passing  that  act.  ib. 
TRUTH: 

whether  the  publication  of  the  truth  ought  to  be  punishable, 
Dis.  cxxii.  Prel. 

may  be  made  an  instrument  of  offence,  ib. 

ordinary  objection  that  truth  cannot  be  a  libel,  ib. 

communic'-nion  of,  may  often  be  highly   immoral,  ib.  cxxiii. 

may  be  used  as  an  indirect  solicitation  to  break  the  peace,  ib. 

consideration  of  the  question  on  grounds  of  public  policy,  ib. 

dehberate  charges  ought  not  to  be  made  but  in  the  ordinary 
course  of  law,  ib.  cxxv. 

to  admit  the  truth  as  a  defence  in  all  cases,  would  be  to  ex- 
tend the  criminal  code  indefinitely^  ib, 

would  be  attended  with  injustice  to  the  party  defamed,  ib. 
cxxvii. 

whether  it  ought  to  be  admitted  in  mitigation  of  provocation 
for  libel,  ib.  cxxxi. 

whether  it  ought  to  be  admitted  as  evidence  of  the  intention 
where  the  question  turns  on  malice  in  part,  ib.  cxhii. 

justification  of,  must  be  specially  pleaded,  i.  4(56. 

notice  of  proof  where  justification  is  pleaded,  ii.  100. 

where  the  plea  is  general,  ii.  101. 

must  be  precise,  ib. 

circumstances  of  exaggeration,  when  necessary  to  be  proved, 
ib. 

of  words  given  in  evidence  to  prove  malice  admissible,  ii.  102. 

acquittal  of  plaintiff,  does  not  exclude  evidence  of  his  guilt,  ib. 


INDEX.  453 

TRUTH : 

evidence  of  good  character  admissible,  to  what  presumption 
of  guilt,  ib. 

amounts  to  an  absolute  justification  independent  of  intention, 
i.  230,  &c. 

in  case  of  Scan.  Mag.  i.  234. 

may  be  proved  notwithstanding  an  acquittal,  i.  235. 

must  be  pleaded  in  justification,  i.  236. 

suspicion  insufficient,  i.  237. 

an  insufficient  bar  after  pardon,  unless  after  conviction,  ib. 

loss  of  advantage  which  could  only  be  acquired  by  conceal- 
ment of  truth,  no  ground  of  action,  Prel.  Dis.  Iv. 

of  a  defamatcry  charge,  how  far  a  defence  by  the  Roman  law, 
ib.  XXXV. 

proof  of,  when  admissible  nnder  plea  of  general  issue,  ii.  103. 

in  action  for  malicious  prosecution,  ib. 

case  for  slander  of  title,  ii.  104. 

of  libel,  no  defence  in  case  of  indictment,  ii.  251. 

reasons  for  the  distinction,  252,  &c. 

same  in  case  of  Scan.  Mag.  ii.  255. 

evidence  of,  not  admissible  under  general  issue,  ii.  87. 

of  v/ords  given  in  evidence  to  prove  malice  admissible,  ii.  57, 

no 

TUT CHIN: 

conviction  of,  ii.  163,  187. 
TWELVE  TABLES: 
law  of,  Prel.  Dis.  xxiv. 

the  position  that  they  punished  satirists  capitally,  observed  up- 
on, ib.  cxlix. 


V. 

VARIANCE: 

See  Declaration,  i.  9G1. 
VENUE : 

i.  341. 
VERITAS  CONVICII: 

doctrine  of  the  civil  law  as  to,  Prel.  Dis.  xxxv. 

of  the  law  of  England,  ib. 

doubts  of  Ftoman  jurists  as  to  the  plea  of,  ib.  xli. 

of  Scotch  jurists,  ib. 

Mr.  Berth wicke's  observations  on  the  subject,  ib,  xlii. 

law  of  Scotland  as  to,  ib.  Ivii. 

rule  of  Scotch  law  as  to,  ib.  xlii. 

of  the  law  of  England,  ib.  xliv. 

general  principle  on  which  falsity  is  essential,  ib. 
VICTORINUS: 

rescript  to  inquiry  by,  ib.  xxxvi. 


454  INDEX. 

W. 

•WARRANTS : 

general,  illegality  of,  ii.  295,  298,  299. 

Ld.  Coke's  case,  ii.  298. 

general,  for  seizure  of  papers,  illegality  of,  ib.  298,  299. 

see  Process. 
WHOREDOM: 

words  of,  ii.  124. 
WIFE: 

joinder  of,  i.  348. 
WILKES,  JOHN: 

conviction  of,  ii.  174. 
WITCHCRAFT: 

words  of,  i.  86. 
WITNESS: 

evidence  by,  not  actionable,  i.  242. 

member  of  parliament,  to  what  examinable,  ii.  92. 

barrister  not  compellable  to  give  evidence,  when,  ii.  83. 

when  he  may  refer  to  paper  to  refresh  his  memory,  ii.  63. 

not  bound  to  criminate  liimself,  ii.  50. 
WOMEN: 

imputations  on  general  reputation  not  actionable  without  spe- 
cial damage,  i.  198. 
WORDS: 

have  constituted  acts,  of  treason,  ii.  166. 

the  contrary  since  held,  ib.  166,  167. 

reason  for  this,  ii.  167. 

sec  us  where  words  are  coupled  with  an  act,  ii.  168. 

written  or  printed,  ii.  169. 

uttered  in  passion,  during  intoxication,  &;c.  are  actionable  ac- 
cording to  the  law  of  England,  Prel.  Dis.  Lxii. 
WRITING  OF  LIBEL: 

whether  indictable  without  subsequent  pubHcation,  ii.  229. 

whether  in  itself  criminal,  ii.  230. 


THE   END. 


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